Wiesen v. Guaranteed Home Mortgage, Inc.
DECISION AND ORDER denying 16 Motion for Summary Judgment. Defendant GHMC has failed to establish an absence of a material fact. Consequently, summary judgment is precluded. Therefore, Defendants motion for summary judgment, ECF No. 16, is denied. Signed by Hon. Charles J. Siragusa on 1/12/17. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
GUARANTEED HOME MORTGAGE, INC.,
Jon E. Bonavilla, Esq.
Culley, Marks, Tanenbaum & Pezzulo
36 West Main Street, Suite 500
Executive Office Building
Rochester, NY 14614-1790
For Donald Yost:
Julie P. Apter, Esq.
Goldberg Segalla LLP
665 Main Street Suite 400
Buffalo, NY 14203
Siragusa, J. This employment discrimination case, brought pursuant to Title VII
of the Civil Rights Act of 1964 and the New York Human Rights Law, is before the Court
on Defendant’s motion seeking summary judgment. Motion for Summary Judgment,
Jun. 1, 2016, ECF No. 16. For the reasons stated below, the application is denied.
The facts for the purpose of this motion are taken from the parties’ statements
filed pursuant to Loc. R. Civ. P. 56. Disputes are indicated below.
Defendant Guaranteed Home Mortgage, Inc. (“GMHC”) was a mortgage investment and banking firm that provided residential and commercial mortgage financing to a
wide variety of consumers and real estate professionals. The corporate offices were located in White Plains, New York. Plaintiff Christie Wiesen (“Wiesen”), a female, was
hired in October 2001 as a mortgage loan originator at GMHC’s branch office in Rochester, New York. As part of her employment, she attended mandatory harassment training and received a certificate of completion on February 9, 2012. A little less than a year
later, on January 3, 2013, Wiesen was promoted to the position of Branch Manager of
the Rochester branch.
Contrary to Wiesen’s allegations in the complaint ¶ 9, GMHC contends that Marc
Schwaber (“Schwaber”), based in White Plains, New York, was a sales manager for
GHMC and has never been its chief executive officer. Wiesen denies GMHC’s assertion
in an affidavit in which she states the following with regard to Schwaber’s position in
4. In August 2012, GHMC fired my branch manager Joe Prioa, and my
branch then began reporting to another manager in White Plains, John Albright.
5. However, beginning in October 2012, Albright had been fired and a new
branch manager, Marc Schwaber, was brought in to manage the Rochester branch. He was my superior and supervisor, and I was required to report to him. At this time, I also spoke by phone to the owner of GHMC,
David Wind, expressing my concern about the repeated change in managers for the branch. Mr. Wind specifically told me at that time that
Schwaber was being brought in to manage the branch and that he would
“really turn things around.”
Wiesen Aff. ¶¶ 4–5, Aug. 15, 2016, ECF No. 19-5.
GHMC counters that any complaints against Schwaber by Wiesen would have
been in her personnel file, and there are none. Apter Aff. ¶ 10, Jun. 1, 2016, ECF No.
16-1. Further, GHMC contends that “[t]he files that were provided to the EEOC demonstrated that GHMC terminated all of its Rochester, New York employees due to branch
closure. The plaintiff was not terminated due to retaliation.” Id. ¶ 13. In a letter addressed to the U.S. Equal Employment Opportunity Commission, and dated April 1,
2014, ECF No. 16-11 (“Letter to EEOC”), Julie P. Apter, Esq., responded to the question of who was the branch manager at the Rochester office. She wrote in pertinent part
With respect to the information requested in number 1, please be advised
that Guaranteed Home Mortgage Company did not maintain organization
charts or descriptions for the branch offices. The branch manager would
be the individual in charge of each location. With respect to this particular
location, Joseph Proia was the branch manager until his termination on
August 13, 2012. At that time, Guaranteed Home Mortgage Company was
in the process of closing the branch because it was not profitable. However, Guaranteed Home Mortgage Company ended up keeping Christie
Wiesen and another loan officer on board. Since it is required by the Nationwide Mortgage Licensing System and Registry to have a branch manager listed, the White Plains, New York branch manager, Andrew Abrams,
was listed as an interim branch manager at that time. In addition, New
York State requires a licensed mortgage loan officer to be set up as a
branch manager. Therefore, John Cate was the regional manager and
was overseeing the branch location although he was not a licensed loan
officer. Therefore, the complainant, Christie Wiesen, ended up managing
the location from the site and she was being considered to be placed as
the official branch manager for that location if the location were going to
remain open. Unfortunately, a decision was made to close the entire
The Rochester location closed in the summer of 2013 due to the fact that
it was not profitable. Christie Wiesen and another individual were terminated in mid-July and then the two remaining loan officers were terminated at the beginning of August, 2013. One individual stayed on to work with
the chief financial officer at that time to develop possible broker business.
However, this officer did not report to that office location since they closed
Letter to EEOC ¶ 1.
STANDARDS OF LAW
Summary Judgment Motion
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, 90 S. Ct. 1598, 26 L. Ed. 2d 142
(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[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, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)), cert. denied, 517 U.S. 1190, 116 S. Ct. 1678, 134 L. Ed. 2d 780 (1996).
The burden then shifts to the non-moving party to demonstrate specific facts
showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). To do this, the
non-moving party must present evidence sufficient to support a jury verdict in its favor.
Anderson, 477 U.S. at 249. “[F]actual issues created solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’ issues for trial.” Hayes v. N.Y. City
Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996). 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 nonmoving party.” Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only
carry their respective burdens by producing evidentiary proof in admissible form. Fed.
R. Civ. P. 56(c)(1)(B). The underlying facts contained in affidavits, attached exhibits,
and depositions, must be viewed in the light most favorable to the non-moving party.
United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962).
Of course, it is well settled that courts must be “particularly cautious about granting summary judgment to an employer in a discrimination case when the employer’s intent is in question. Because direct evidence of an employer’s discriminatory intent will
rarely be found, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Schwapp v. Town of Avon, 118
F.3d 106, 110 (2d Cir. 1997) (citations and internal quotations omitted).
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.’ 42 U.S.C.
§ 2000e-2(a)(1).” Richardson v. New York State Dep’t of Correctional Serv., 180 F.3d
426, 436 (2d Cir. 1999).
New York Human Rights Law
New York Executive Law § 296 provides in pertinent part as follows:
1. It shall be an unlawful discriminatory practice:
(a) For an employer or licensing agency, because of the age, race, creed,
color, national origin, sexual orientation, military status, sex, disability,
predisposing genetic characteristics, or marital status of any individual, to
refuse to hire or employ or to bar or to discharge from employment such
individual or to discriminate against such individual in compensation or in
terms, conditions or privileges of employment.
N.Y. Exec. Law § 296(1) (McKinney’s 2007). The Court notes that the elements of Title
VII and New York Executive Law § 296 claims “can be analyzed, for purposes of determining sufficiency of the evidence, in a manner virtually identical to those under Title
VII.” Gallagher v. Delaney, 139 F.3d 338, 345 (2d Cir. 1998).
Hostile Work Environment
The Second Circuit addressed the elements of a hostile work environment claim
under Title VII in Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597 (2006) as follows:
AWhen the workplace is permeated with discriminatory intimidation, ridicule, and insult [based on, inter alia, sex] that is sufficiently severe or pervasive to alter the conditions of the victim=s employment and create an
abusive working environment, Title VII is violated.@ Harris [v. Forklift Systems, Inc.], 510 U.S.  at 21 (internal quotation marks and citations
omitted); see also Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002)
(same). A jury must be able to conclude that the work environment both
objectively was, and subjectively was perceived by the plaintiff to be, sufficiently hostile to alter the conditions of employment for the worse. Id.; see
also Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004).
Schiano, 445 F.3d at 604-05 (footnote omitted). As the Second Circuit observed in
Mass v. Equinox Fitness Club, 354 Fed. Appx. 556, 557B58 (2d Cir. 2009):
As a general rule, it is Aaxiomatic that in order to establish a sex-based
hostile work environment under Title VII, a plaintiff must demonstrate that
the conduct occurred because of [his] sex.@ Alfano v. Costello, 294 F.3d
365, 374 (2d Cir. 2002); accord Brown v. Henderson, 257 F.3d 246, 252
(2d Cir. 2001) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 79-80 (1998)). To do so, a plaintiff must present, at a minimum, circumstantial evidence from which a discriminatory intent can be inferred.
See Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 603 (2d Cir.
AConduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or
abusive-is beyond Title VII’s purview.@ Harris v. Forklift Systems, Inc, 510 U.S. 17, 21
In order to state a claim for retaliation, a plaintiff must plausibly allege that “(1)
[Plaintiff] engaged in a protected activity; (2) the employer was aware of the protected
activity; (3) the employer took adverse action; and (4) a causal connection exists between the protected activity and the adverse action.” Shah v. N.Y. State Dept. of Civil
Service, 341 Fed. Appx. 670, 673 (2d Cir. 2009).
Burden Shifting Analysis
All of the claims are subject to the McDonnell Douglas burden shifting analysis.
As explained by the Second Circuit in a retaliation context:
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 [v. Hamilton Sundstrand Corp.], 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
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…[;] 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). In a subsequent case, the Su-
preme Court clarified that a plaintiff making a retaliation claim pursuant to 42 U.S.C.
§ 2000e-3(a)1 “must establish that his or her protected activity was a but-for cause of
the alleged adverse action by the employer.” Univ. of Tex. Southwestern Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2534 (2013).
Wiesen’s complaint contains the following causes of action: (1) sexual discrimination by supervisory personnel in violation of Title VII and NYHRL; (2) failing to prevent, or tolerating sexual harassment sufficiently pervasive to alter employment conditions and physical conduct of a sexual nature in violation of Title VII and NYHRL;
(3) Retaliation against Wiesen when she complained about sexual harassment; (4) a
claim to punitive as well as compensatory damages; (5) assault; (6) negligence; (7)
breach of employment contract; and (8) a claim of unjust enrichment.
Wiesen directly alleges that her harasser, Schwaber, was in a supervisory position over her as the branch manager. However, in a sworn declaration based on her
personal knowledge, GHMC’s counsel states that Schwaber was not Wiesen’s supervisor, but was, instead, a sales manager in the White Plains office of the company. If
Schwaber was a colleague on the same level as Wiesen, then the only way GHMC
would be liable for any alleged sexual harassment by him would be if Wiesen complained to GHMC and GHMC took no action. As the Second Circuit wrote in Petrosino v.
Bell Atlantic, 385 F.3d 210 (2d Cir. 2004):
The Supreme Court has ruled that employers are not automatically liable
for sexual harassment perpetrated by their employees. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L.Ed.2d 633
(1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275,
“Discrimination for making charges, testifying, assisting, or participating in enforcement
141 L.Ed.2d 662 (1998).
Where an employee is the victim of sexual harassment, including harassment in the form of a hostile work environment, by non-supervisory coworkers, 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. See Faragher v.
City of Boca Raton, 524 U.S. at 789; accord Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000). Where the harassment is
attributed to a supervisor with immediate or successively higher authority
over the employee, a court looks first to whether the supervisor’s behavior
“culminate[d] in a tangible employment action” against the employee, Burlington Indus., Inc. v. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; if it did, “the
employer will, ipso facto, be vicariously liable,” Mack v. Otis Elevator Co.,
326 F.3d at 124. In the absence of such tangible action, an employer will
still be liable for a hostile work environment created by its supervisors unless it successfully establishes as an affirmative defense 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.” Burlington Indus., Inc. v. Ellerth,
524 U.S. at 765, 118 S. Ct. 2257; accord Faragher v. City of Boca Raton,
524 U.S. at 807, 118 S. Ct. 2275; Mack v. Otis Elevator Co., 326 F.3d at
Petrosino, 385 F.3d at 225.
Wiesen’s complaint alleges that GHMC failed “to take proper remedial action
when it learned of other incidents of this nature prior to the incidents involving the Plaintiff,” and failed to “take proper precautions with respect to its employees/agents with
known histories of sexual harassment or other improper behavior, and to protect other
employees, including the Plaintiff, from the same….” Compl. ¶ 58. In an affidavit, Weisen states that Schwaber was brought in to manage the Rochester branch and was her
supervisor beginning in October 2012. She claims she spoke with the owner of GHMC,
David Wind (“Wind”), by phone and expressed her “concern about the repeated change
in managers for the branch.” Weisen Aff. ¶ 5, Aug. 15, 2016, ECF No. 19-5. She alleges
details of her encounters with Schweiber in October 2012, including sexual overtures
Schweiber made to her when she gave him a ride to his hotel in Rochester. Id. ¶ 6. She
includes copies of what she states are text messages and Facebook® messages
Schweiber sent to her that were sexually harassing. She also explained why she did not
raise the issue to the owner of GHMC: “I was at a loss over what to do. I did not want to
complain and lose my job or be demoted. I also know that Schwaber was the best friend
of the owner of Defendant GHMC, David Wind.” Weisen Aff. ¶ 8. She also asserts that
Schwaber sent indiscrete images of himself to her and encouraged her to reciprocate.
Id. ¶ 9. Weisen recounted that Schwaber told her that the company’s IT department
would be wiping his computer clean to remove all the explicit messages to her, and that
Schwaber “‘did it all the time.’” Id. ¶ 11. In addition to her own affidavit, Weisen’s response contains a affidavits from fellow employees Joe Petralla and Rebecca L. Miller.
Both confirm that Schwaber was the Rochester branch manager in October 2012, and
that Weisen confided in him about the sexually explicit messages Schwaber sent to her.
In April 2013, Weisen states she informed Wind and the company’s chief financial officer, Joe Cilento (“Cilento”) about Schwaber’s sexual harassment. At the time,
Weisen was branch manager, and shortly after her complaint, Cilento arrived at the
Rochester branch on May 2, 2013, and announced he was the branch manager now
and Weisen was no longer in that position. Id. ¶ 13. In late May 2013, Weisen sent an
email message to Wind, Cilento and Marie Gannon (“Gannon”), GHMC’s human resources manager, “expressing [her] displeasure with the demotion and questioning why
it had occurred after [she] had just told Wind about the sexual harassment with Schwaber.” Id. ¶ 14. Weisen states she never received a response.
Weisen’s affidavit raises a question of fact about whether Schwaber was a supervisor, or a peer. If the former, then liability can be implicated to the company. If the
latter, then Schwaber has alleged sufficient facts to show that she availed herself of the
reporting provisions in the company handbook for sexual harassment and received no
response. Further, she has alleged sufficient facts to show retaliation by GMHC for having engaged in a protected act: reporting the sexual harassment by Schwaber. Further,
on the question of her contract and the alternative claim for unjust enrichment, Weisen’s
affidavit establishes sufficient facts to withstand summary judgment.
Defendant GHMC has failed to establish an absence of a material fact. Consequently, summary judgment is precluded. Therefore, Defendant’s motion for summary
judgment, ECF No. 16, is denied.
IT IS SO ORDERED
Dated: January 12, 2017
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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