Sloth v. Constellation Brands, Inc. et al

Filing 32

ORDER granting in part and denying in part 9 Motion to Dismiss for Failure to State a Claim. Signed by Hon. Michael A. Telesca on 6/8/2012. (BMB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
VICKY SLOTH,
DECISION
and ORDER

Plaintiff,
v.

11-CV-6041T
CONSTELLATION BRANDS, INC., JOHN BOGNASKI,
JOHN ELLIOT, SHELDON RICHARDSON,
BARBARA BAGSHAW, CLAYTON BROWER, individually
and in their Official Capacities1
Defendants.
______________________________________
INTRODUCTION
Plaintiff Vicky Sloth (“Sloth”), brings this action pursuant
to Title VII of the Civil Rights Act of 1964 (“Title VII”),
(codified at 42 U.S.C. § 2000(e), et seq.); the Age Discrimination
in Employment Act of 1967, (“ADEA”)(codified at 29 U.S.C. § 621 et.
seq.); 42 U.S.C. § 1981, and the New York State Human Rights Law
against

her

former

employer,

Constellation

Brands,

Inc.,

(“Constellation”) and various employees of Constellation claiming
that she was sexually harassed by the defendants during almost the
entire course of her 28 year employment with Constellation, and has
been discriminated against on the basis of her gender, age, race,
1
While the caption of the Complaint purports to bring causes of action
against individual defendants in their “Official Capacities,” “[a]n official
capacity claim against an employee of a private corporation is viewed as a
claim against the corporate entity itself.” Galloway v. Swanson, 2012 WL
646074, *8 (N.D. Ohio, 2012, February 28, 2012). As defendants are all
current or former employees of Constellation brands, and Constellation is
named as a defendant, the court need not consider whether defendants were
acting in individual or “official” capacities. See Owens v. Connections
Community Support Programs, Inc., --- F.Supp.2d ----, 2012 WL 37153, *3 (D.
Del., January 06, 2012)(where “employer is named as a defendant, the same
discrimination claim against an employee in his official capacity is
redundant.”)

national origin, and disability.2

Defendants move to dismiss the

Complaint, or, in the alternative, for summary judgment dismissing
plaintiff’s claims on grounds that Sloth’s claims are barred by res
judicata and collateral estoppel; the individual defendants named
in the complaint are not subject to liability; the majority of
plaintiff’s claims are time barred; those claims that are not timebarred fail to state a claim upon which relief may be granted; and
plaintiff has failed to exhaust her administrative remedies with
regard to many of her claims, and thus is barred from bringing
those claims before this court.
For the reasons set forth below, defendants’ motion is granted
in-part and denied in-part.
BACKGROUND
The following factual allegations are found in the plaintiff’s
complaint and Defendants’ Statement of Material Facts.

As a

general matter, the defendants deny all of plaintiff’s claims of
harassment or discrimination.
Plaintiff Vicky Sloth became employed by Constellation Brands
in December, 1980.

Constellation is a producer and distributer of

wines and spirts, and Sloth worked in the production area of the

2

Although plaintiff alleges that she was discriminated against on the
basis of a disability, she does not allege any cause of action under the
Americans with Disabilities Act (“ADA”). Her only references to the ADA are
found in the unnumbered “Preliminary Statement” portion of her Complaint, and
at ¶ 158 of the Complaint, where she alleges that at the time she was fired
from her employment, she was “disabled within the meaning of the New York
Human Rights Law and the federal ADA.”

2

company as a line attendant.

According to Sloth, she suffered

numerous acts of gender discrimination and was subjected to a
hostile working environment during her entire employment with
Constellation Brands, which ended when she was fired from the
Company on February 28, 2009.3
Sloth contends that during the “early 1980's”, employee Harry
Davis frequently un-hooked her bra.
claims

that

in

the

early

(Complaint at ¶ 26). She also

1980's,

defendant

Clayton

Brower

(“Brower”), who was the plant supervisor at the time, repeatedly
invited

Sloth

(Complaint

at

to

meet

¶

him

33).

at

a

hotel

Plaintiff

for

admitted

sexual
at

her

relations.
Workers’

Compensation hearing that she never told anyone about these alleged
incidents until 2008.

(Defendants’ Statement of Undisputed Facts

at ¶ 56, 57) Sloth contends that during the 1980's employee Dave
Mitchell accosted her in a storage room and demanded that she have
sex with him.

(Complaint at ¶ 36).

Plant Supervisor Mike

Hershberger also, on several occasions, allegedly made obscene and
sexually graphic comments to Sloth.

(Complaint at ¶ 41).

Sloth

alleges that Hershberger showed her pornographic images on his
computer, and gave her a photograph of a penis.
43, 44).

(Complaint at ¶¶

According to the defendants, employee Charito Crouse

provided sworn

testimony

at

plaintiff’s

3

workers’

compensation

Prior to her termination, plaintiff sought workers’ compensation
benefits for alleged injuries that occurred while she worked at Constellation
as a result of the alleged discrimination she suffered. After a hearing on
the matter, plaintiff’s claims for benefits were denied.

3

hearing stating that the picture was a “joke picture” that had been
printed from a computer, that the picture was not of a penis, and
that

both

Defendants

Crouse

and

contend

Sloth

that

found

plaintiff

the

picture

did

Hershberger’s alleged behavior until 2008.

be

funny.

complain

not

to

about

According to the

defendants, Plaintiff admitted at her Workers’ Compensation hearing
that she never told anyone about these alleged incidents until
2008.

(Defendants’ Statement of Undisputed Facts at ¶¶ 76, 78).

Sloth alleges that during “the early 1990's” bottling room
supervisor John Elliot (“Elliot”) made repeated vulgar sexual
advances towards her, and, after she refused his advances, assigned
her

to

the

dirtiest

and

(Complaint at ¶¶ 46-48).

most

difficult

jobs

in

the

plant.

She claims that Elliott also refused to

promote or recommend Sloth for promotion in retaliation for her
refusing to acquiesce to his advances. (Complaint at ¶ 49).

Sloth

admitted that she never complained of this behavior until 2008,
when she made the allegations to an independent medical examiner.
Plaintiff admitted at her Workers’ Compensation hearing that she
never

told

anyone

about

these

alleged

incidents

until

2008.

(Defendants’ Statement of Undisputed Facts at ¶ 91) .
Sloth alleges that in approximately 1993 or 1994, co-employee
Sheldon Richardson (“Richardson”) was assigned to work during
plaintiff’s shift. She claims that upon his transfer to her shift,
Richardson began sexually harassing her.

4

(Complaint at ¶ 51).

Sloth claims that she complained to management about Richardson’s
behavior, but that Constellation failed to take any action to
prevent Richardson from harassing her. (Complaint at ¶ 52). Sloth
claims that in 1994 or 1995, after a company picnic, Richardson and
several other company employees went to her house, where plaintiff
fell asleep.

(Complaint at ¶¶ 53, 54).

Although plaintiff in her

Complaint alleges that she fell asleep, in her EEOC Complaint she
claimed that she had passed out from drinking.
Statement of Undisputed Facts at ¶ 104)

(Defendants’

She claims that upon

awaking, she found Richardson standing over her, and that her
blouse had been undone and her shorts unzipped. (Complaint at ¶¶
54-58).

Plaintiff claims that she complained of this conduct to

Constellation, but that Constellation took no action because the
alleged incident took place at Sloth’s home. (Complaint at ¶¶ 60,
61).

Plaintiff complained to the police regarding Richardson’s

conduct, but according to the defendant, no charges were ever
brought. She alleges that Richardson continued to harass her after
the incident. (Complaint at ¶¶ 59, 65, 66).
made

numerous

allegations

about

Richardson

Although plaintiff
to

Constellation

management, none of her allegations could be substantiated, and in
1995, Sloth signed a letter prepared by Constellation acknowledging
that

the

fabricated.

complaints

she

had

made

against

Richardson

were

(Defendants’ Statement of Undisputed Facts at ¶ 503)

5

Sloth alleges that beginning in 1998, defendant John Bognaski,
(“Bognaski”) the director of East Coast Bottling Operations for
Constellation, began “a long running an continuous pattern of quid
pro

quo

sexual

harassment

(Complaint at ¶ 68).

and

retaliation

against

[her].”

She claims that Bognaski attempted to kiss

her, and warned her that he would have her fired if she told anyone
about the incident.

(Complaint at ¶¶ 70, 71).

Thereafter,

Bognaski allegedly assigned her to work with Richardson, despite
her request not to work with him because of his alleged harassment
and sexual assault.

(Complaint at ¶¶ 74, 75).

According to

Bognaski,

no

assignments.

he

played

role

in

making

work

(Defendants’ Statement of Undisputed Facts at ¶ 515)

After she

refused a work assignment in which she was required to work with
Richardson, she was disciplined.

When Bognaski called her to his

office asking her to explain her refusal to work with Richardson,
he allegedly forced her to accompany him to a storage room where he
forced her to perform oral sex on him. (Complaint at ¶¶ 79, 80, 8285).

Several of plaintiff’s coworkers, including coworkers with

whom plaintiff allegedly shared intimate details of her life,
testified, or provided written statements indicating that plaintiff
never

complained

of

allegedly happened.

this

alleged

occurrence

at

the

time

it

(Defendants’ Statement of Undisputed Facts at

¶¶ 410, 411, 480, 648, 658, 711, 712, 735, 745) Several of
plaintiff’s

coemployes

also

testified

6

at

plaintiff’s

workers’

compensation hearing that it would have been impossible for Sloth
to leave her work station on the production line without the entire
line coming to a halt, and therefore, they did not believe that
Sloth could have left her workstation and been forced to have sex
in a storage room during working hours.

(Defendants’ Statement of

Undisputed Facts at ¶ 654, 719) Still other coworkers, including
Bognaski himself, testified that because his office was in a main
hallway, had several windows, and was a conduit to other rooms used
by employees, there was significant, often unannounced traffic in
and near his office that would likely have prevented any type of
improper physical assault of the plaintiff. (Defendants’ Statement
of Undisputed Facts at ¶¶ 420-428, 537-541, 623-626, 742)
In 2003, plaintiff finalized her divorce from her husband, and
she alleges that Bognaski thereafter increased his interest in
attempting to have sex with her, and began sexually harassing her
more frequently. (Complaint at ¶ 86)

In 2006, Bognaski allegedly

left a message on plaintiff’s cell phone inviting her to join him
after an evening of going out with her friends.

(Complaint at ¶

97) Sloth claims that Bognaski was upset because Sloth’s boyfriend
and co-workers heard the message, and as a result, he allegedly
gave her, or caused her to receive,

a poor annual work-review

resulting in a smaller pay raise than other employees received.
Complaint at ¶¶ 100, 102, 105).

Defendants claim that one of

plaintiff’s coworkers, Mary Henninger, who heard the voice message,

7

described it as “very short and completely innocuous” (Defendants’
Statement of Undisputed Facts at ¶ 196, 405), and that Bognaski did
not conduct the annual performance review.

(Defendants’ Statement

of Undisputed Facts at ¶ 201).
Plaintiff alleges that during a wedding reception in April
2007, she became intoxicated after drinking “several alcoholic
beverages”.

(Complaint at ¶ 111)

She claims that she woke up

naked on a bed at an unknown location, with Bognaski standing over
her claiming that he, “took advantage of [her]” (Complaint at ¶
112-115) Sloth claims that Bognaski threatened her that he would
fire her if she told anyone what had happened.

(Complaint at ¶

116) According to the defendants, Sloth testified at her Workers’
Compensation Hearing that she had been “drinking all day”, and that
she did not know if she woke up in a truck or a room, and did not
know whether Bognaski had “taken advantage of her” because she “was
drunk.” (Defendants’ Statement of Undisputed Facts at ¶¶ 208, 212,
213, 214, 222, 223).
In April 2008, plaintiff claims that she took a four week
vacation.

(Complaint at ¶ 118)

She alleges that Bognaski asked

her to call him while she was on vacation so he could meet her.
(Complaint at ¶ 119)

Sloth refused to, and upon returning to work,

Bognaski claimed that she “owed him” for failing to call him.
(Complaint at ¶ 121)

8

Thereafter,

plaintiff

alleges

that

Bognaski

attempted to get Sloth into his office alone.

repeatedly

(Complaint at ¶ 126,

129) She claims that Bognaski told the Chief Executive Officer of
the company that he was “fucking” her,

and that in August, 2008,

Bognaski told her that he “want[ed] to put [his] cock in [her]
mouth.”

(Complaint at ¶¶ 134, 139).

She claims that someone had

carved the words “good morning nipples” into her work station, but
that Bognaski refused to take any action after she reported it.
(Complaint at ¶¶ 135, 136) Defendants claim that although plaintiff
alleged in her EEOC charge that she showed the carving to employee
Deborah Bilodeau, Bilodeau gave sworn testimony stating that she
had never seen such a carving, and had never heard of such an
allegation until plaintiff’s Workers’ Compensation hearing in 2009.
(Defendants’ Statement of Undisputed Facts at ¶¶ 242, 244, 245,
687).
In August, 2008, plaintiff alleges that Bognaski retaliated
against her for failing to engage in sexual activity with him by
scheduling her to work with Richardson.

(Complaint at ¶ 141)

Plaintiff’s requests to be reassigned were refused, and plaintiff
was sent home to consider whether or not she would accept her work
assignment or face termination of her employment.
145).

(Complaint at ¶

Plaintiff returned to work, but continued to complain about

being assigned to work with Richardson, and met with defendant
Bagshaw to complain about Bognaski’s alleged sexual assaults and

9

harassment.

(Complaint at ¶ 151)

Thereafter, a few days later,

plaintiff alleges that she suffered severe chest pain and shortness
of breath as a result of having told Bagshaw about Bognaski’s
behavior. (Complaint at ¶ 153) At some unspecified date, plaintiff
alleges that she took medical leave from her employment to be
treated

for

post-traumatic

stress

disorder

and

agoraphobia

resulting from the hostile work environment to which she was
subjected.

(Complaint at ¶ 154) She claims that approximately 6

months after disclosing Bognaski’s alleged sexual assaults and
behavior, and after filing a charge of discrimination with the EEOC
on August 27, 2008, she was fired from her employment on or about
February

28,

2009.

(Complaint

at

¶

156)

According

to

the

defendants, Sloth’s employment was terminated because her approved
medical leave expired, and in the company’s estimation, plaintiff
was

not

able

to

return

to

work.

(Defendants’

Statement

of

Undisputed Facts at ¶¶ 508, 511)
In August 2008, after leaving work with chest pains and while
on medical leave, Sloth filed a claim for workers’ compensation
benefits claiming that she suffered work-related injuries of post
traumatic stress disorder, panic disorder, and agoraphobia as a
result of the sexual harassment she endured at Constellation.

A

hearing was held at which 13 witnesses testified regarding whether
or not Sloth suffered her alleged injuries as a result of events
that occurred at her workplace.

10

By Decision dated November 30,

2009, Workers’ Compensation Board Judge Ronald McEvoy found that
Sloth

was

benefits

disqualified
because

representations

she

on

[her

from

obtaining

“knowingly
claim

workers’

made

form]

false

and

to

compensation

statements

the

and

doctor’s

who

examined her and during the course of her testimony under oath as
to the material facts for the purpose of obtaining compensation.”
As a result, Judge McEvoy denied plaintiff’s compensation claim.
Plaintiff

appealed

Judge

McEvoy’s

determination

to

the

Administrative Review Division of the Workers’ Compensation Board
(the “Appeals Board”).
Appeals

Board

disqualified

declined
from

In a Decision dated June 30, 2010, the
to

decide

receiving

whether

benefits

or

for

not

having

Sloth
made

was

false

statements to the Workers’ Compensation Board, and instead held
that the plaintiff had failed to present any credible evidence that
she suffered a compensable injury while employed at Constellation.
In so holding, the Appeals Board noted the plaintiff presented no
evidence

that

she

had

ever

been

treated

for

any

anxiety,

depression, or stress disorder prior to September, 2008; that not
a single witness who testified at plaintiff’s hearing or submitted
a sworn statement supported plaintiff’s allegations of harassment;
and that there

was

no

credible

evidence

that

Richardson

had

harassed Sloth.
Thereafter, on January 24, 2011, plaintiff filed the instant
case

alleging

gender,

racial,

discrimination.
11

national

origin,

and

age

DISCUSSION
I.

Standard of Review

A.

Motion to Dismiss

In deciding a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a court must “accept...all
factual allegations in the complaint and draw...all reasonable
inferences in the plaintiff’s favor.” See Ruotolo v. City of New
York, 514 F.3d 184, 188 (2d Cir.2008) (internal quotation marks
omitted). In order to withstand dismissal, the complaint must plead
“enough facts to state a claim to relief that is plausible on its
face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does

not

need

detailed

factual

allegations,

a

plaintiff’s

obligation to provide the grounds of his entitlement to relief
requires

more

than

labels

and

conclusions,

and

a

formulaic

recitation of the elements of a cause of action will not do.” Id.
at 555 (internal quotation marks omitted).4

For purposes of a

motion to dismiss, the court will deem the complaint to include
“any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference.” See
Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000).

4
See also Goldstein v. Pataki, 516 F.3d 50, 56-57 (2d Cir.2008) (quoting
Twombly, 127 S.Ct. at 1974) (“at a bare minimum, the operative standard
requires the ‘plaintiff [to] provide the grounds upon which his claim rests
through factual allegations sufficient to raise a right to relief above the
speculative level.’”)

12

B.

Summary Judgment

Rule 56© of the Federal Rules of Civil Procedure provides that
summary

judgment

"should

be

rendered

if

the

pleadings,

the

discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant

is

entitled

to

judgment

as

a

matter

of

law."

When

considering a motion for summary judgment, all genuinely disputed
facts must be resolved in favor of the party against whom summary
judgment is sought.

Scott v. Harris, 550 U.S. 372, 380 (2007).

If, after considering the evidence in the light most favorable to
the nonmoving party, the court finds that no rational jury could
find in favor of that party, a grant of summary judgment is
appropriate.
Industrial

Scott, 550 U.S. at 380 (citing Matsushita Elec.

Co.

v.

Zenith

Radio

Corp.,

475

U.S.

574,

586-587

(1986)).
II.

Federal
Discrimination
Defendants

Claims

against

Individual

Counts One, and Three of the plaintiff’s Complaint claim that
defendants John Bognaski, John Elliott, Sheldon Richardson, Barbara
Bagshaw

and

Clayton

Richardson

all

discriminated

against

the

plaintiff in their individual capacities in violation of Title VII,
and the ADEA.

The Second Circuit has held that “individual

defendants with supervisory control over a plaintiff may not be
held personally liable under Title VII.”

Tomka v. The Seiler

Corporation, 66 F. 3d 1295, 1313 (2d Cir. 1995).
13

Thus, the

statutory scheme of Title VII only permits recovery against an
employer-entity.

Both the ADA and ADEA are analogous to Title VII

regarding individual liability and, therefore, individuals cannot
be held liable under either the ADEA, Birkbeck v. Marvel Lighting
Corp., 30 F.3d 507, 510 (4th Cir.), cert. denied, 115 S.Ct. 666
(1994), or the ADA. Altman v. New York City Health & Hospital
Corp.,

903

F.Supp.

503,

508

(S.D.N.Y.

1995)

Accordingly,

plaintiff’s Title VII, and ADEA claims are dismissed against the
individual defendants with prejudice.

To the extent the Complaint

attempts to allege a cause of action under the ADA against any of
the individual defendants, such a cause of action is dismissed with
prejudice.
III. ADEA and ADA Claims.
The ADEA provides that prior to bringing an action in federal
court

for

age

administrative

discrimination,
charges

against

discriminated against him.

a

plaintiff
the

parties

29 U.S.C. § 626(d).

must

first

that

file

allegedly

Similarly, it is

well-settled that “the exhaustion of administrative remedies is a
prerequisite to a civil action in federal court on a claim under
the

ADA.”

Paluh

v.

HSBC

Bank

USA,

409

F.Supp.2d

178,

196

(W.D.N.Y., 2006) (Foschio, M.J.)(citing Curto v. Edmundson, 392
F.3d 502, 503 (2d Cir. 2004).

“A plaintiff's failure to exhaust

administrative remedies as to an ADA claim renders the district
court without jurisdiction over such claims in a civil action in

14

federal court.”

Paluh, 409 F.Supp.2d at 196 (citing Polera v.

Board of Educ. of Newburgh Enlarged City School District, 288 F.3d
478, 480 (2d Cir.2002).
A district court lacks jurisdiction over claims which were not
made in an administrative complaint or which are not reasonably
related to allegations made in the administrative complaint. Butts
v. City of N.Y. Dept. of Housing, 990 F.2d 963 (2nd Cir. 1984).

A

claim made in a federal action is considered reasonably related to
a claim made in an administrative action if “the conduct complained
of

would

fall

within

the

‘scope

of

the

[administrative]

investigation which can reasonably be expected to grow out of the
[administrative] charge . . . .’” Fitzgerald v Henderson, 251 F.3d
345, 359-60 (2nd Cir. 2001)(quoting Cornwell v. Robinson, 23 F.3d
694, 706 (2nd Cir. 1994)).
In the instant case, there is no evidence that plaintiff
exhausted her administrative remedies with respect to her claims of
age or

disability

discrimination.

Plaintiff’s

administrative

complaint filed with the EEOC alleged only gender discrimination,
in the form of sexual harassment.
Complaint

failed

discrimination.

to

allege

Similarly, her amended EEOC

disability,

age,

or

racial

Although the form on which plaintiff filed her

initial administrative complaint contained check-off boxes for
other

forms

of

discrimination,

including

disability

or

age

discrimination, plaintiff did not check-off these boxes, nor did

15

she

allege

age

or

disability

administrative complaint.

discrimination

anywhere

in

her

Because plaintiff did not raise age or

disability discrimination in her administrative proceedings, and
because claims of age and disability discrimination would not
reasonably fall within the scope of an administrative investigation
into sexual harassment, I find that plaintiff has failed to exhaust
her administrative remedies with respect to her claims of age and
disability discrimination, and I therefore dismiss plaintiff’s ADEA
and ADA claims with prejudice.

See e.g., McPhatter v. New York

City, 2009 WL 2412980 at * 6 (E.D.N.Y., July 30, 2009)(“a claim of
gender discrimination cannot be said to be “reasonably related” to
a claim of discrimination based on race, color, or disability.”);
Morales v. City of New York Dept. of Juvenile Justice, 2012 WL
180879 at *4 (S.D.N.Y., Jan. 23, 2012)(dismissing as unexhausted
claims of age, gender and disability discrimination on grounds that
they were not reasonably related to plaintiff’s claims of racial
discrimination); Chen v. Citigroup Inv., Inc., 2004 WL 2848539 at
*2 (S.D.N.Y., Dec. 9, 2004) (claims of race, color, sex, religion
and/or national origin discrimination are not reasonably related to
claims of disability discrimination.”).
IV.

Title VII Claims

A.

Claims of Race, National Origin, and Color Discrimination

Title VII of the Civil Rights Act of 1964, prohibits an
employer from

"hir[ing] or . . . discharg[ing] any individual, or

16

otherwise . . . discriminat[ing] 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.

As with claims

under the ADEA and ADA, it is well settled that prior to bringing
a Title VII discrimination claim in federal court, a plaintiff must
first exhaust his or her administrative remedies by filing an
administrative complaint with the Equal Employment Opportunity
Commission

(“EEOC”),

or

with

investigate the allegations.

a

state

agency

authorized

to

45 U.S.C. § 2000e-5(c)(Title VII

claims)
In

the

instant

case,

although

the

plaintiff

filed

an

administrative claim of gender discrimination in violation of Title
VII, her initial and amended administrative complaints alleged only
that she was discriminated against on the basis of her gender, and
not that she was subjected to discrimination on the basis of her
race, national origin, or color.

Because plaintiff has failed to

exhaust her administrative remedies with respect to those claims,
I grant defendants’ motion to dismiss plaintiff’s Title VII claims
of race, national origin, and color discrimination with prejudice.
B.

Time-Barred Claims

Claims brought pursuant to Title VII are subject to a strict
limitations period. Specifically, a plaintiff must bring claims of
discrimination

to the

EEOC within

17

300

days

of

the allegedly

discriminatory act or acts.

42 U.S.C. § 2000e-5(e)(1).

In the

instant case, plaintiff filed her EEOC complaint on August 27,
2008.

As a result, only those acts occurring on or after November

1, 2007 are timely for purposes of plaintiff’s Title VII claims.
Plaintiff contends that her allegations of discrimination
occurring prior to November 1, 2007 may be considered by the court
because they form part of a continuing pattern of discrimination.
Under this "continuing violation" theory of liability:
if a Title VII plaintiff files an EEOC charge
that is timely as to any incident of
discrimination in furtherance of an ongoing
policy of discrimination, all claims of acts
of discrimination under that policy will be
timely even if they would be untimely standing
alone.
Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1993), cert.
denied, 511 U.S. 1052 (citations omitted).
discriminatory

acts,

however,

do

not

Separate and discrete

constitute

a

continuing

violation where they do not "[involve] specific discriminatory
policies or mechanisms such as discriminatory seniority lists .
. or discriminatory employment tests . . . ."
the mere allegation

of

a

series

of

discrete

Id.

.

Accordingly,

actions

without

allegation that the actions were part of a policy or mechanism of
discrimination, is insufficient to establish that a continuing
violation of Title VII rights has occurred.

Rather, Lambert

requires that a "specific discriminatory policy" be shown which
amounts to more than a string of allegedly discriminatory acts

18

committed with one motive in mind.

Id.

Accordingly, allegations

of multiple instances of unlawful conduct, even if similar, do not,
by

themselves

implicate

the

doctrine.

Id.

Moreover,

the

“continuing violation” doctrine is strongly disfavored by courts in
this Circuit.

Lee v. Saltzman, 2011 WL 5979162 at * 5 (W.D.N.Y.,

November 27, 2011)(Skretny, C.J.).
In the instant case, plaintiff has merely alleged a series of
discrete acts, principally by Bognaski that are not part of a
corporate

policy

or

mechanism

of

discrimination,

and

thus,

plaintiff’s allegations of discrimination by various employees
occurring prior to November 1, 2007 and dating back to the early
1980's are not timely.

I therefore consider only those alleged

acts that occurred on or after November 1, 2007 in determining
whether

or

not

plaintiff

has

stated

a

claim

of

gender

discrimination under Title VII.
C.

Hostile Work Environment and Quid pro quo Discrimination
claims.

Plaintiff alleges that she was subjected to a hostile work
environment and quid pro quo discrimination while employed with
Constellation.

Although

related,

environment

quid

quo

and

pro

claims

sexual

of

a

harassment

hostile
are

work

distinct

theories of discrimination both, of which are recognized under
Title VII.

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65

(1986)(distinguishing

between

claims

of

quid

pro

quo

sexual

harassment and hostile working environment and recognizing both);
19

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998);
Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 603 (2nd
Cir., 2006).

A quid pro quo claim of discrimination is asserted

when a plaintiff alleges that she was subjected to sexual demands
from a supervisor, and suffered tangible, adverse employment action
as a result of her refusal to acquiesce to those demands.

Schiano,

445 F.3d at 603. If, however, a plaintiff does not suffer tangible
adverse employment actions as a result of her refusal to submit to
sexual

demands,

she

may

state

a

claim

for

a

hostile

work

environment, provided the conduct she is subjected to is “severe
and pervasive.” Burlington Industries, 524 U.S. at 754. I discuss
plaintiff’s allegations of quid pro quo discrimination a hostile
working environment separately.
1.

Quid Pro Quo Discrimination Claims

To state a claim of quid pro quo gender discrimination, “‘a
plaintiff must present evidence that she was subject to unwelcome
sexual conduct, and that her reaction to that conduct was then used
as

the

basis

for

decisions

affecting

compensation,

conditions, or privileges of her employment.’”

terms,

Gregg v. New York

State Department of Taxation & Finance, 1999 WL 225534 (S.D.N.Y. ,
April 19, 1999)(quoting Kariban v. Columbia University, 14 F.3d
773, 777 (2nd Cir. 1994).

Thus under a quid pro quo theory of

discrimination, “[w]hen a plaintiff proves a tangible employment
action resulted from a refusal to submit to a supervisor’s sexual

20

demands, he or she establishes that the employment decision itself
constitutes a change in the terms or conditions of employment that
is actionable under Title VII.”
524 U.S. 742, 751-754 (1998).

Burlington Industries v. Ellerth,

In this case, Sloth has alleged that

she was subjected to unwelcome sexual advances from Bognaski, and
that as a result of her refusal to accede to Bognaski’s demands,
she was threatened with termination of her employment and subjected
to unfavorable treatment.
the

unfavorable

She further alleges that as a result of

treatment,

she

was

suspended

from

work,

and

ultimately could not continue to work because of the continued fear
of reprisals from Bognaski for failing to succumb to his unwanted
sexual assaults.

Such allegations state a claim of quid pro quo

sexual harassment.
2.

Hostile Working Environment Claims

To state a claim of discrimination based on a hostile work
environment, a plaintiff must demonstrate “(1) that her workplace
was

permeated

with

discriminatory

intimidation

that

was

sufficiently severe or pervasive to alter the conditions of her
work environment, and (2) that a specific basis exists for imputing
the conduct that created the hostile environment to the employer.”
Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2nd Cir.
1996)(quoting Murray v. New York Univ. College of Dentistry, 57
F.3d 243, 249 (2d Cir.1995)).
and

pervasive

enough

to

The conduct alleged must be severe

create

21

an

environment

that

“would

reasonably be perceived, and is perceived, as hostile or abusive.”
Harris

v.

Forklift

Systems,

Inc.,

510

U.S.

17,

Moreover, the conduct must be “objectively hostile.”
In

this

case,

plaintiff

alleges

that

she

22

(1993).

Id.

was

routinely

solicited for sexual encounters by her boss, and that she was
threatened with losing her job if she failed to succumb to his
demands.

Such an allegation states a claim of a hostile working

environment. Jansen v. Packaging Corp. of America, 123 F.3d 490,
567 (7th Cir., 1997)(“when the supervisor makes constant demands for
sex in exchange for job benefits (maybe in jest, maybe not), the
victim surely suffers from a “hostile environment” at the same time
as she endures the “quid pro quo” harassment.”) Because plaintiff
has stated a claim for a hostile work environment and quid pro quo
sexual harassment, I deny defendants’ motion to dismiss these
claims.
IV.

Section 1981 Claims

42 U.S.C. § 1981 provides in relevant part that: “All persons
within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts .
. . as is enjoyed by white citizens . . . .” 42 U.S.C.A. § 1981
(1994).

To state a claim under § 1981, “a plaintiff must allege

facts in support of the following elements: (1) the plaintiff is a
member of a racial minority; (2) an intent to discriminate on the
basis

of

race

by

the

defendant,

22

and

(3)

the

discrimination

concerned one or more of the activities enumerated in the statute
. . . .”

Mian v. Donaldson, Lufkin & Jenrette Securities, 7 F.3d

1085 (2nd Cir. 1993) (citation omitted).

“Essential to an action

under section 1981 are allegations that the defendants’ acts were
purposefully discriminatory and racially motivated.”

Albert v.

Caravano, 851 F.2d 561, 571 (2nd Cir. 1988) (citations omitted).
Plaintiff

alleges that

“[t]hroughout

her

employment

with

defendants, Plaintiff was ridiculed and insulted by coworkers
because of her national origin such as being told to go back to her
country [sic]” (Complaint at ¶ 29). She claims that management was
aware of the conduct, but failed to stop it, and that upon
information and belief, she was denied training and promotional
opportunities because of her national origin, and was treated worse
than employees who were of a different race or national origin with
respect to training, job opportunities, promotions, and discipline.
(Complaint at ¶ ¶ 30-32). These are the only allegations regarding
racial or national origin discrimination contained in plaintiff’s
22 page, 168 paragraph Complaint.
Initially, I note that national origin discrimination is not
prohibited under 42 U.S.C. § 1981.

Anderson v. Conboy, 156 F.3d

167, 170 (2nd Cir., 1998)(“It is also settled that Section 1981 does
not prohibit discrimination on the basis of . . . national origin
. . . .)(citing Saint Francis College v. Al-Khazraji, 481 U.S. 604,
613

(1987)).

Accordingly, to the extent that Sloth alleges a

23

violation of Section 1981 based on national origin discrimination,
such claims are not cognizable.
Excluding

plaintiff’s

claims

of

national

origin

discrimination, her only claim of racial discrimination is a single
averment that she was treated differently than “similarly situated
coworkers of a different race . . . with respect to training, job
opportunities, promotion and discipline.”
Plaintiff

fails

to

allege

when

this

(Complaint at ¶ 32).

discrimination

allegedly

occurred, or how she was treated differently or worse than nonFilipino employees.

Accordingly, I find that plaintiff has failed

to state a claim for racial discrimination under Section 1981, and
I grant defendants’ motion to dismiss plaintiff’s Section 1981
claims.
V.

State Law Claims

Plaintiff alleges in Count Two of her Complaint that she was
subjected to sexual harassment in violation of the New York Human
Rights Law.

Complaint at 164.

Although claims brought under the

New York Human Rights Law are analytically identical to claims
brought under Title VII.
F.3d 708 (Cir. 1996).

Van Zant v. KLM Royal Dutch Airlines, 80
See Haywood v. Heritage Christian Home,

Inc., 977 F.Supp. 611, 613 (W.D.N.Y. 1997)(Larimer, C.J.)(Noting
that both claims are governed by McDonnell Douglas standard.]),
there are two significant differences between Title VII and New
York Human Rights Law claims.

First, under the New York Human

24

Rights

Law,

discrimination

individual
if

it

defendants

can

be

shown

may

be

that

held

they

liable

have

for

"aid[ed],

abet[ted], incite[d], compel[ed] or coerce[d] the doing of any . .
.

forbidden

[discriminatory

attempt[ed] to do so."

act]”

under

this

N.Y. Exec. Law § 296(6).

article,

or

Therefore,

individuals who may or not be employers as that term is defined in
the Human Rights Law may nevertheless be held personally liable for
employment discrimination under § 296 of the Human Rights Law.
Tomka, 66 F.3d at 1317 (citing N.Y. Exec. Law § 296(6) (McKinney
1993)).
Second, the statute of limitations for claims brought pursuant
to the New York State Human Rights Law is different than the
statute of limitations for claims brought under Title VII.

As set

forth above, the statute of limitations for claims brought pursuant
to Title VII is 300 days from the date on which an administrative
complaint is brought before the EEOC.

Under the New York Human

Rights Law, however, the limitations period runs for three years
from the date on which an action asserting Human Rights Law
violations is filed.

N.Y.C.P.L.R. § 214(2) (McKinney's 2008);

Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir., 1998)
(“[Plaintiff's] cause of action under New York's Human Rights Law
is governed by a three-year statute of limitations, measured from
the filing of the action in court.”) The three year limitations
period, however, is tolled “for the period between the filing of an

25

EEOC charge and the issuance by the EEOC of a right-to-sue letter.”
DeNigris v. New York City Health and Hospitals Corp., --- F.Supp.2d
----, 2012 WL 955382, *5 (S.D.N.Y., March 9, 2012)(citing Wilson v.
New York City Police Dept., 2011 WL 1215735, *4 (S.D.N.Y. Mar.25,
2011))5.
In the instant case, plaintiff’s administrative complaint was
filed with the EEOC on August 27, 2008, and according to the
Complaint, a right-to-sue letter was issued by the EEOC on October
28, 2010.

Accordingly, the limitations period in this action is

tolled by two years, two months, and two days–the period during

5

Although defendants contend, without citation or attribution, that the
statute of limitations for Human Rights Law claims is three years, neither
defendants nor plaintiff address the numerous cases decided by federal
district courts siting in New York holding that the three-year limitations
period is tolled by the filing of an administrative complaint with the EEOC.
See Esposito v. Deutsche Bank AG, 2008 WL 5233590, *5 (S.D.N.Y., December 16,
2008) (stating that “[a]lthough the Second Circuit has yet to definitively
opine on the issue of whether the filing of a charge with the EEOC serves to
automatically toll the statute of limitations on claims asserted under [the
New York Human Rights Law] . . . numerous courts in this Circuit have held
that the three-year statute of limitations applicable to claims under NYSHRL .
. . ‘is tolled during the period in which a complaint is filed ... with the
EEOC.’”)(quoting Lee v. Overseas Shipping Corp.,, 2001 WL 849747, at *8
(S.D.N.Y. July 30, 2001); See also, Butler v. New York Health & Racquet Club,
768 F.Supp.2d 516, 536 (S.D.N.Y., 2011); Smith v. Tuckahoe Union Free School
Dist., 2009 WL 3170302 at * 11 (S.D.N.Y., September 30, 2009); Siddiqi v. New
York City Health & Hosp. Corp., 2008 WL 3833869, at *18 (S.D.N.Y. Aug. 12,
2008); Ritterband v. Hempstead Union Free School Dist., 2008 WL 3887605, at
*9 n. 9 (E.D.N.Y. Aug. 20, 2008).
While some state law claims, such as tort claims, may not be
tolled by the filing of an EEOC complaint, (see Carlson v. Geneva City School
Dist., 679 F.Supp.2d 355, 370-71 (W.D.N.Y., 2010)(Siragusa, J.)(acknowledging
split in authority as to whether or not filing of an EEOC complaint tolls the
statute of limitations for a state law claim, and concluding that tort claims
are not tolled); Smith, 2009 WL 3170302 at * 11 (“[w]ith respect to state law
torts, the overwhelming weight of authority is that the filing of an EEOC
charge does not toll the statute of limitations.”)) by statute, state Human
Rights law claims are tolled by the filing of an administrative complaint with
the New York State Division of Human Rights, (N.Y. Exec. L. § 297(9)and courts
in this Circuit have extended the tolling period to administrative complaints
filed with the EEOC.

26

which plaintiff’s administrative complaint was pending before the
EEOC.

The Complaint in this case was filed on January 24, 2011.

As a result The three year statute of limitations, with the
addition of the two year, two month, and two day tolling period
renders claims made on or after November 22, 2005, timely for
purposes of state Human Rights Law claims.
With respect to individual defendant Richardson, there is no
allegation in the Complaint that after November 22, 2005, he
engaged in any discriminatory action, or engaged in, or attempted
to engage in, any activity that aided, abetted, incited, compelled,
or coerced any prohibited discriminatory act.

With respect to

defendant Brower, the only conduct he is accused of after November
22, 2005 is meeting with the plaintiff “one or two times” during
the course of several days after she refused in August, 2008 to
work on the same line as defendant Richardson.
149).

(Complaint at ¶

Such an allegation fails to allege any violation of the New

York Human Rights law.
With respect to defendant Elliot, plaintiff fails to allege
that he engaged in any harassing activity on or after November 22,
2005.

Although plaintiff alleges that after November 22, 2005,

Elliot: (1) scheduled her to work with Richardson after being told
to do so by Bognaski; (2)refused to change her work schedule to
accommodate her request that she not work on the same line as
Richardson; and (3)

screamed at her for refusing to work on the

27

same line as Richardson,6 these allegations fail to allege that
Elliot engaged in, or attempted to engage in, any activity that
aided, abetted, incited, compelled, or coerced any prohibited
discriminatory act under the Human Rights Law.
With respect to defendant Bagshaw, plaintiff alleges that she
told Bagshaw in August, 2008, that she had been subjected to sexual
assaults and harassment by Bognaski.

(Complaint at ¶ 151).

contends

investigate

that

Bagshaw

promised

to

her

Sloth

complaints

(Complaint at ¶ 152) but there is no allegation that Bagshaw
investigated the complaints or failed to do so.

Rather, Sloth

alleges that a few days after she made her complaint about Bognaski
to Bagshaw, she felt pain and tightness in her chest, and left
work.

(Complaint at ¶ 153)

never returned to work.

According to the defendants, Sloth

Defendants also allege, without dispute

from the plaintiff, that Sloth made several complaints to Bagshaw
over the course of her employment, that Bagshaw investigated
Sloth’s complaints, and that Sloth acknowledged in writing that
complaints she had made to Bagshaw were without merit. Defendants’
Statement of Undisputed Facts at ¶ 503.

Plaintiff’s allegation

that she expressed complaints to Bagshaw, without any additional

6

It should be noted that based on the defendants’ statement of
undisputed facts, which has not been controverted by the plaintiff, that
plaintiff did not object to working during the same shift as Richardson, or
even in close proximity to Richardson Rather, Sloth objected to working on the
same production line as Richardson, even though Richardson could be physically
farther away from her on the same production line than he might be on an
adjacent production line. See Defendants’ Statement of Undisputed Facts at ¶¶
576, 578, 579)

28

allegations as to whether or not Bagshaw acted on the complaints,
fails to allege that Bagshaw engaged in, or attempted to engage in,
any activity that aided, abetted, incited, compelled, or coerced
any prohibited discriminatory act under the Human Rights Law.
Based on the above determinations, I find that plaintiff has
failed to state a claim under the New York Human Rights Law against
defendants Elliott, Richardson, Bagshaw, and Brower, and I grant
defendants’ motion to dismiss these claims.

Additionally, for the

reasons set forth above, I find that plaintiff has stated a claim
of quid pro quo sexual harassment and a hostile work environment
under

the

New

York

Human

Rights

Law

against

defendants

Constellation Brands and Bognaski, and therefore, may proceed with
those claims.
Defendants contend that plaintiff’s state law claims, but not
her Title VII claims, are barred from consideration by this court
under the doctrines of res judicata and/or collateral estoppel
because plaintiff has already litigated these claims before the
Workers’ Compensation Board.7

According to the defendants, the

Workers’ Compensation Board found that plaintiff did not sustain
any work related injuries while employed at Constellation, and
therefore, the Board’s finding prohibits plaintiff from alleging
sexual harassment in this action.
7

I find, however, that the

Defendants also contend that plaintiff’s Section 1981 claims are
barred by res judicata and collateral estoppel. However, because I have
dismissed plaintiff’s Section 1981 claims on other grounds, I do not address
defendants’ res judicata and collateral estoppel arguments as they pertain to
Section 1981.

29

doctrine of res judicata is inapplicable to this action, and that
the doctrine of collateral estoppel does not prohibit plaintiff
from raising the issue of unlawful sexual harassment under the New
York Human Rights law in this action.
The

doctrine

of

res

judicata,

sometimes

called

“claim

preclusion” provides that where a final judgment on the merits of
a claim has been rendered by a court of competent jurisdiction, the
parties to that dispute are precluded from bringing any further
causes of action with respect to those decided claims. Cromwell v.
County of Sac, 94 U.S. 351, 352 (1877); Lawlor v. National Screen
Service Corp., 349 U.S. 322, 326 (1955).

Moreover, under New York

law, res judicata will bar a later claim “‘arising out of the same
factual grouping as an earlier litigated claim even if the later
claim is based on different legal theories or seeks dissimilar or
additional relief.’

Burgos v. Hopkins, 14 F.3d 787, 790 (2d

Cir.1994). The bar to subsequent claims based on a different legal
theory will not, however, apply where “the initial forum did not
have the power to award the full measure of relief sought in the
later litigation.’ ” Id.

See also Burka v. New York City Transit

Auth., 32 F.3d 654, 657 (2d Cir.1994).
In the instant case, it is without dispute that the Workers’
Compensation Board was without jurisdiction to consider or award
plaintiff damages and/or equitable relief on her Human Rights Law
discrimination claims.

Accordingly, because the initial forum

30

lacked the authority to grant plaintiff her full measure of relief
for discrimination claims, the doctrine of res judicata cannot
prevent her from bringing such claims here.
Under the doctrine of collateral estoppel, sometimes referred
to as “issue preclusion,” in cases where a specific issue (as
opposed

to

a

legal

claim)

has

been

actually

litigated

and

necessarily determined by a court of competent jurisdiction, that
determination
different

is

cause

conclusive
of

action

in

subsequent

involving

a

suits

party

based

to

the

on

a

prior

litigation. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5,
(1979).

In this case, defendants allege that the issue of whether

or not Sloth was subjected to sexual harassment was litigated
before

the

necessarily
harassment.

Workers’
decided

Compensation
that

she

had

board,

and

not been

that

the

subjected

to

Board
such

Defendants therefore claim that Sloth’s harassment

claims are precluded under the doctrine of collateral estoppel.
I find, however, that the issue of whether or not Sloth
suffered sexual harassment while working at Constellation was not
actually decided by the Workers’ Compensation Board, and therefore,
plaintiff is not precluded from raising this issue in the instant
action.

Judge McEvoy, in finding that plaintiff did not qualify

for workers’ compensation benefits, held that plaintiff had failed
to establish that she suffered her claimed mental injury at work.
In so holding, Judge McEvoy determined that the plaintiff had lied

31

about her injury at her hearing, to her doctors, and on her
application for workers’ compensation benefits.

Based on the

plaintiff’s lack of credibility and making of false statements,
Judge

McEvoy

determined

that

she

had

violated

statutory

law

prohibiting the making of false statements in connection with an
attempt to obtain workers’ compensation benefits, and therefore was
disqualified from receiving such benefits.
It is clear from Judge McEvoy’s two-page written decision that
he

did

not

decide

whether

or

not

plaintiff

suffered

sexual

harassment, but instead decided that plaintiff had not suffered a
mental injury at work.

While it could be inferred from Judge

McEvoy’s Decision that no harassment took place, Judge McEvoy did
not explicitly make such a finding, and therefore, it can not be
said that he decided that issue or that such a finding was
“necessary” to his ruling that plaintiff was not entitled to
workers’ compensation benefits.

As a result collateral estoppel

can not be applied to Judge McEvoy’s determination.
Similarly, the Workers’ Compensation Board, which affirmed
Judge McEvoy’s determination, found that plaintiff had failed to
establish a mental or stress-related injury resulting from sexual
harassment in the workplace. While the Board’s opinion stated that
evidence submitted by Constellation “rebut[ted] the claimant’s
allegations and testimony of sexual harassment in the workplace”
the Board did not make a finding that sexual harassment by Bognaski

32

did not occur.

The only explicit finding made by the Board was

that there was “no convincing credible evidence that [Richardson]
had harassed the claimant in the past.”

This finding, however, is

immaterial to plaintiff’s current claims as this court has held
that the allegations against Richardson are time-barred.

Because

the Board did not decide as a necessary issue that plaintiff had
not suffered sexual harassment, but decided instead that plaintiff
had not suffered a mental injury as a result of alleged harassment,
I find that collateral estoppel does not bar plaintiff from raising
her New York Human Rights Law claim of sexual harassment.
In

support

of

their

contention

that

collateral

estoppel

applies in this case and precludes plaintiff from raising her Human
Rights Law claim of discrimination, defendants cite Paone v.
Wynantskill Detention Center, an unreported decision from the New
York State Supreme Court, Rensselaer County, in which the court
held that a plaintiff’s Title VII and New York State Human Rights
Law claims of discrimination were precluded by a determination made
by a Workers’ Compensation Board Judge that the plaintiff had not
sustained an alleged mental injury. Paone v. Wynantskill Detention
Center, 25 Misc.3d 1225(A), 906 N.Y.S.2d 774 (Table) (N.Y.Sup.,
October 21, 2009).

I respectfully decline to follow the reasoning

set forth in Paone, however, on grounds that such an application of
collateral estoppel would be patently unfair under the facts of
this case.

33

It is well settled that collateral estoppel may be applied to
decisions of administrative agencies sitting in a “quasi-judicial”
capacity.

However, collateral estoppel will apply only where

“giving a preclusive effect to the administrative proceeding would
not be unfair or unexpected.” Taylor v Brentwood Union Free School
District,

908

F.Supp.

1165,

1178

(E.D.N.Y.

1995)(emphasis

added)(citing Long island Lighting Co. v. Imo Industries Inc., 6
F.3d 876, 885-86, (2nd Cir., 1993).

In the instant case precluding

a party that has sought workers’ compensation benefits from later
raising

an

employment

discrimination

claim

would

be

highly

unexpected, as the Workers’ Compensation Board has no jurisdiction
to resolve discrimination claims.

See Hill v. Coca Cola Bottling

Co. Of New York, 786 F.2d 550, 554 (2nd Cir., 1986)(recognizing that
under the facts of the case before it, it could not have been
foreseen by the plaintiff that brining a claim for unemployment
benefits

would

complaint).

have

bared

a

subsequent

anti-discrimination

I find in this case, that plaintiff could not have

foreseen that seeking workers’ compensation benefits would have
prohibited her from subsequently bringing a discrimination claim
under the New York Human Rights Law.
her

New

York

Human

Rights

Law

collateral estoppel.

34

I therefore decline to bar

claims

under

the

doctrine

of

CONCLUSION
For the reasons set forth above, I grant defendants’ motion to
dismiss Count Three of the Complaint alleging violations of the
ADEA with prejudice.

I grant defendants’ motion to dismiss Count

Four of plaintiff’s Complaint alleging violations of 42 U.S.C. §
1981.
ADA

I further grant defendants’ motion to dismiss plaintiff’s

claims,

and

all

federal

defendants with prejudice.

claims

against

the

individual

Plaintiff’s Title VII claims alleging

race, national origin and/or color discrimination are dismissed
with prejudice.

Plaintiff’s Human Rights Law claims are dismissed

against defendants Elliott, Richardson, Bagshaw, and Brower.
Plaintiff may proceed on her Title VII and New York Human
Rights Law claims of hostile work environment and quid pro quo
sexual harassment against defendant Constellation, and her New York
Human Rights Law claims of hostile work environment and quid pro
quo sexual harassment against defendant Bognaski.

Plaintiff’s

Title VII claims are limited to those claims accruing on or after
November 1, 2007, and her New York State Human Rights Law claims
are limited to those claims accruing on or after November 22, 2005.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
____________________________
Michael A. Telesca
United States District Judge
DATED:

Rochester, New York
June 8, 2012
35