Accurso v. Majestic Pools et al, 1:06-cv-00013, No. 31 - Docket Alarm

Accurso v. Majestic Pools et al, 1:06-cv-00013, No. 31 - Docket Alarm


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Case 1:06-cv-00013-RJA-LGF Document 31 Filed 03/28/08 Page 1 of 34




v. 06-CV-13A(F) MAJESTIC POOLS, INC.,1 JOHN BUNCH, Defendants.


CREIGHTON, PEARCE, JOHNSEN & GIROUX Attorneys for Plaintiff CATHERINE CREIGHTON, of Counsel 560 Ellicott Square Building 295 Main Street Buffalo, New York 14203 E. CAREY CANTWELL, P.C. Attorney for Defendants E. CAREY CANTWELL, of Counsel 984 Ellicott Square Building 295 Main Street Buffalo, New York 14203 BROWN & KELLY, LLP Attorneys for Defendants LISA T. SOFFERIN, of Counsel 1500 Liberty Building Buffalo, New York 14202

JURISDICTION This case was referred to the undersigned by the Honorable Richard J. Arcara on


The court takes notice that although Plaintiffs denominate “Majestic Pools” as a Defendant, Plaintiffs refer to this Defendant throughout the Complaint and motion papers filed in this action as both “Majestic Pools” and “Majestic Pools, Inc.” The parties do not dispute that “Majestic Pools” and “Majestic Pools, Inc.” refer to the same entity. In the interest of clarity and consistency, the court refers to the Defendant as “Majestic Pools, Inc.”

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Case 1:06-cv-00013-RJA-LGF Document 31 Filed 03/28/08 Page 2 of 34

March 1, 2006 for all pre-trial matters. (Doc. No. 6). The matter is presently before the court on Defendants’ cross-motion for summary judgment, filed on March 16, 2007.

BACKGROUND Plaintiff Kellie Accurso (“Plaintiff” or “Accurso”) commenced this action on January 6, 2006, alleging sexual discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) (“First Cause of Action” or “Title VII claim”), the New York State Human Rights Law, New York Executive Law § 290 et seq. (“NYHRL”) (“Second Cause of Action” or “NYHRL claim”), and a common law claim of constructive discharge (“Third Cause of Action” or “the Constructive Discharge claim”). Complaint ¶¶ 52, 58, 61. In particular, Plaintiff maintains that while employed by Defendants Majestic Pools and John Bunch (“Defendants”), she was sexually harassed by Majestic’s sole owner, Bunch, Bunch’s behavior created a hostile work environment for Plaintiff, and, as a result of Bunch’s conduct, Plaintiff was forced to resign. Plaintiff’s Memorandum at 16-19, 22-23. Defendants filed their answer on February 27, 2006, (Doc. No. 5), and an Amended Answer with counterclaim was filed on March 20, 2006 (Doc. No. 9) (“Amended Answer”). On April 4, 2006, Plaintiff filed her answer to Defendants’ Counterclaim. (“Answer to Counterclaim”) (Doc. No. 11). On March 16, 2007, Defendants filed a Notice of Cross-Motion for Summary Judgment and/or protective order. (Doc. No. 21) (“Defendants’ Cross-Motion”). In support of Defendants’ CrossMotion and in opposition to Plaintiff’s motion, Defendants filed the Affirmation of Lisa T.


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Case 1:06-cv-00013-RJA-LGF Document 31 Filed 03/28/08 Page 3 of 34

Sofferin, Esq. (“Sofferin Affirmation”), the Affidavit of John Bunch (“Bunch Affidavit”), a Statement of Undisputed Facts in Support of Motion for Summary Judgment (“Defendants’ Fact Statement”), a Memorandum of Law in Support of Motion for Summary Judgment and in Opposition to Plaintiff’s Motion to Compel (“Defendants’ Memorandum”), Defendants’ Appendix of Exhibits for Summary Judgment (“Defendants’ Exh(s).___”), along with Exhibits A through N. On May 18, 2007, Plaintiff filed Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment (Doc. No. 27) (“Plaintiff’s Memorandum”), and attached the Creighton Affirmation, along with Exhibits A through J (“Plaintiff’s Exh(s). ___”), and Plaintiff’s Response to Defendants’ Rule 56 Statement of Undisputed Facts in Support of Motion for Summary Judgment (“Plaintiff’s Fact Statement”). Defendants, on June 5, 2007, filed Defendants’ Reply Memorandum of Law in support of Defendants’ Cross-Motion for Summary judgment. (Doc. No. 29) (“Defendants’ Reply Memorandum”). Based on the following, Defendants’ cross-motion should be GRANTED in part, and DENIED in part.

FACTS2, 3 At all times relevant, Defendant Bunch (“”Bunch”) owned and operated Defendant Majestic Pools, Inc., a New York state corporation with its principal place of


Taken from the pleadings and papers filed in the instant action.


Defendants have disputed certain facts to which Plaintiff testified at Plaintiff’s deposition, however, Defendants deem such facts to be undisputed for purposes of their cross-motion “to establish that even if Accurso’s version of the facts were to believed [sic], and if all inferences are drawn in her favor, the Defendants are still entitled to judgment in their favor.” Defendants’ Fact Statement at 2 n. 1.


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Case 1:06-cv-00013-RJA-LGF Document 31 Filed 03/28/08 Page 4 of 34

business in Erie County, New York (“Majestic”). Complaint ¶ 3; Defendants’ Fact Statement ¶ 2; Plaintiff’s Fact Statement ¶ 2 (together “Fact Statements ¶¶ ___”). Majestic “is in the retail pool and spa business.” Fact Statements ¶ 1; Bunch Affidavit ¶ 2. Plaintiff was hired by Bunch’s brother, Larry Bunch, in July of 2000, to paint and refurbish spas for Majestic as a part-time employee.4 Fact Statements ¶ 5; Defendants’ Exh. C (“Plaintiff’s Deposition”) at 92, 78, 79, 100, 105.5 Bunch determined which employees were hired, fired, and Majestic’s employees’ salaries and benefits. Plaintiff’s Exh. F (“Larry Bunch Deposition”) at 7; Scotland Deposition at 8, 12. Prior to February 2001, Bunch agreed to provide Plaintiff with health insurance, effective February of 2001. Fact Statements ¶¶ 7-8; Plaintiff’s Deposition at 111, 115-116. Plaintiff worked in the spa department at Majestic, and her supervisor was Larry Bunch. Scotland Deposition at 12. Majestic displayed a sexual harassment policy in the workplace, which stated Because of the importance we place on these types of issues, this company has instituted a procedure for investigating harassment complaints. It is our policy to investigate and resolve these issues in a prompt manner. If you have been harassed, or another’s conduct creates an intimidating, hostile, or offensive work environment, please notify one of the people listed below immediately. Plaintiff’s Exh. G (“Sexual Harassment Policy”). Bunch testified that Kathleen Scotland was listed as the contact person for allegations 4

Bunch asserts Larry Bunch hired Plaintiff, but Larry Bunch indicated his hiring decisions require final approval by Bunch. Bunch Deposition at 21-24; Larry Bunch Deposition at 12. According to Kathleen Scotland, Bunch approves the hiring decisions made by Majestic crew chiefs including Larry Bunch. Plaintiff’s Exh. C (“Scotland Deposition”) at 8, 12. 5

The Complaint states that Plaintiff began working for Defendants in 2001. Complaint ¶ 6. Plaintiff alleges that Defendants began subjecting Plaintiff to differential treatment beginning in 2002.


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Case 1:06-cv-00013-RJA-LGF Document 31 Filed 03/28/08 Page 5 of 34

of harassment, but Scotland believed that Bunch was the individual listed as the person to contact with harassment complaints. Bunch Deposition at 33-35; Scotland Deposition at 23. In the summer of 2000, Bunch took Plaintiff for a ride in Bunch’s private plane. Fact Statements ¶¶ 12; Plaintiff’s Deposition at 118-119. On at least one occasion, Bunch took Plaintiff and her children to Darien Lake and to eat at a restaurant. Fact Statements ¶¶ 11, 17; Plaintiff’s Deposition at 203, 205. Plaintiff and Bunch went to a local casino together in October of 2000, Fact Statements ¶¶ 14; Plaintiff’s Deposition at 136, and, during the summer of 2001, Plaintiff and Bunch flew from Lancaster, New York to Jamestown, New York, in Bunch’s private plane, had lunch, and returned to Lancaster. Fact Statements ¶¶ 15; Plaintiff’s Deposition at 120, 141. In 2001, Bunch came to Plaintiff’s home at least two times to drop off candles for Plaintiff and a slot machine for Plaintiff’s children. Fact Statements ¶¶ 16; Plaintiff’s Deposition at 121, 123. While Plaintiff worked for Majestic, Bunch fixed Plaintiff’s car without charge, Fact Statements ¶¶ 18; Plaintiff’s Deposition at 257, and met Plaintiff and her children at a restaurant for dinner on Plaintiff’s birthday, for which Bunch paid. Fact Statements ¶¶ 18; Plaintiff’s Deposition at 205-206. Two Majestic employees installed a concrete patio at Plaintiff’s house with concrete they had left over from another job and for which Plaintiff offered them wood. Plaintiff’s Fact Statement ¶¶ 19; Plaintiff’s Deposition at 259. In 2001, Plaintiff’s hourly pay was raised to $10 per hour. Fact Statements ¶¶ 20; Plaintiff’s Deposition at 117, 118. Plaintiff left Majestic’s employ from January to April of 2002 for higher-paying employment, Fact Statements ¶¶ 21; Plaintiff’s 5

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