State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 20, 2014 518423 

________________________________

BARBARA TIDBALL,

Respondent,

v MEMORANDUM AND ORDER

SCHENECTADY CITY SCHOOL

 DISTRICT,

Appellant.

________________________________

Calendar Date: October 15, 2014

Before: Peters, P.J., Stein, Garry, Egan Jr. and Devine, JJ.

__________

Girvin & Ferlazzo, PC, Albany (Patrick J. Fitzgerald of

counsel), for appellant.

Colin D. Dwyer, Loudonville, for respondent.

__________

Peters, P.J.

Appeals (1) from an order of the Supreme Court (Buchanan,

J.), entered April 25, 2013 in Schenectady County, which denied

defendant's motion for summary judgment dismissing the third

amended complaint, and (2) from that part of an order of said

court, entered October 3, 2013 in Schenectady County, which, upon

renewal, partially denied defendant's motion for summary

judgment.

Plaintiff, an employee of defendant, and her husband,

derivatively, commenced this action against defendant and the

City of Schenectady in April 2008, grounded upon alleged sexual
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harassment of plaintiff by her supervisor, Steven Raucci.1 In

her amended and second amended complaints, plaintiff asserted

that defendant was liable because it knew of Raucci's conduct

through her own reports to defendant's administration. However,

following two motions to dismiss by defendant and two cross

motions by plaintiff to amend her complaint, Supreme Court

(Giardino, J.), in two orders, among other things, precluded

plaintiff from claiming that defendant knew of Raucci's alleged

harassment based on her own communications with defendant. In

plaintiff's third amended complaint, her only asserted basis for

defendant's knowledge of Raucci's conduct was "various

communications between school administrators and Raucci

individually." Supreme Court (Buchanan, J.) thereafter denied

defendant's motion for summary judgment dismissing plaintiff's

third amended complaint, finding that questions of fact existed

as to defendant's knowledge of Raucci's conduct due to his

possible status as a high level supervisor and as to whether

Raucci himself put defendant on notice of his conduct through his

own actions. Defendant thereafter moved to, among other things,

renew the motion, submitting new evidence that Raucci was not a

high level supervisor. Upon granting renewal, Supreme Court

partially granted defendant's motion for summary judgment by

precluding plaintiff from claiming that defendant was a high

level supervisor. Defendant now appeals, arguing that the third

amended complaint should have been dismissed in its entirety

because defendant did not know, nor should it have known, of

Raucci's conduct against plaintiff.2

Pursuant to Executive Law § 296 (1) (a), it is "an unlawful

discriminatory practice [] [f]or an employer . . ., because of an

1 Supreme Court subsequently dismissed the derivative claim

and the action against the City. 

2 Plaintiff limited her third amended complaint pursuant to

Supreme Court's (Giardino, J.) two orders, and she failed to

appeal from either of the orders limiting her causes of action. 

Therefore, the only issue before us is whether defendant's

administration was on notice of Raucci's alleged harassment of

plaintiff based on Raucci's own actions and communications.
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individual's . . . sex, . . . to discriminate against such

individual in compensation or in terms, conditions or privileges

of employment" (see Catholic Charities of Diocese of Albany v

Serio, 28 AD3d 115, 125 n 4 [2006], affd 7 NY3d 510 [2006], cert

denied 552 US 816 [2007]; Mauro v Orville, 259 AD2d 89, 91

[1999], lv denied 94 NY2d 759 [2000]). An employee may succeed

on a sexual harassment claim pursuant to Executive Law § 296 (1)

(a) upon establishing that he or she is a member of a protected

group, is subjected to unwelcome sexual harassment based on his

or her gender that affects a term, condition or privilege of his

or her employment, and that the employer "knew or should have

known of the harassment and failed to take remedial action"

(Matter of Town of Lumberland v New York State Div. of Human

Rights, 229 AD2d 631, 636 [1996]; see Matter of Bracci v New York

State Div. of Human Rights, 62 AD3d 1146, 1148 [2009], appeal

dismissed 15 NY3d 865 [2010]; Matter of R & B Autobody &

Radiator, Inc. v New York State Div. of Human Rights, 31 AD3d

989, 990 [2006]). An employer will be liable for "an employee's

discriminatory act [where] the employer became a party to it by

encouraging, condoning, or approving it," and the term

condonation includes, as relevant here, "[a]n employer's

calculated inaction in response to discriminatory conduct"

(Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66

NY2d 684, 687 [1985] [internal quotation marks and citation

omitted]; see Matter of New York State Div. of Human Rights v

Young Legends, LLC, 90 AD3d 1265, 1267 [2011]; Goering v NYNEX

Info. Resources Co., 209 AD2d 834, 834 [1994]).

Between September 2007 and February 2009, plaintiff worked

as Raucci's secretary. Raucci, the facilities' supervisor,

reported directly to defendant's human resources administrator,

Michael Stricos, as well as to defendant's assistant

superintendent for business, Michael San Angelo. On June 5,

2008, Raucci sent plaintiff a memorandum on defendant's

letterhead informing her that, effective July 7, 2008, she would

commence her position as "messenger" and congratulating her on

her new appointment. The memorandum indicated that it was copied

to Stricos, San Angelo and Patrick Paratore, a facilities

assistant. On the effective date of her appointment, Raucci sent

plaintiff a memorandum on defendant's letterhead containing the

exact language as the June 5, 2008 communication, with a list of
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"[a]dditional conditions" of the appointment. These conditions

included demands to "[t]ake time everyday to keep your appearance

pleasing for your supervisor[,] . . . [a]lways remember that your

supervisor is a man first and a supervisor second and he should

be treated as such in that sequence[, and b]eing attractive,

sensitive and classy with a touch of sexiness, are crucial to the

position." This memorandum also indicated that it was copied to

San Angelo, Stricos and Paratore, and plaintiff testified that,

based on this notation, she believed that they had received it. 

It is undisputed that plaintiff never directly informed

anyone in defendant's administration that she was being sexually

harassed by Raucci. However, early in plaintiff's work with

Raucci, he wrote a letter to look as if plaintiff had written it,

and asked her to hand-deliver it to Stricos. The mock letter,

which accused Raucci of sexually harassing plaintiff, was

apparently meant as a joke because, at that time, a sexual

harassment suit was pending against Raucci by a former male

employee. According to plaintiff, the letter was intended "to

prove to . . . Stricos that [Raucci] harassed women, that he

liked women, not men." Plaintiff handed Stricos the letter

without speaking to him. Moreover, plaintiff asserted that,

while defendant "recommended sexual harassment training for

[Raucci's] staff, including [Raucci]," due to the prior sexual

harassment lawsuit against him, Raucci himself canceled the

training and would not comply, which defendant allowed. 

Plaintiff further testified that, during a particularly

difficult time in her work with Raucci, the two discussed the

possibility of her transferring to a different position. After

Raucci yelled at her to "just go," she went to Stricos' office to

wait to speak with him. According to plaintiff, as she waited,

Raucci came and looked into where she was sitting and, upon

seeing that Stricos was not there, left. However, when Stricos

arrived, Raucci was directly behind him and followed plaintiff

and Stricos into their meeting. Plaintiff testified that, with

the exception of a few words at the beginning of the meeting, she

was not allowed to explain why she had come to speak to Stricos,

as Raucci dominated the meeting. Stricos never asked plaintiff's

purpose for the meeting, nor followed up with her about issues

discussed therein. 
-5- 518423 

In support of its motion, defendant adduced sufficient

evidence to meet its initial burden of establishing as a matter

of law that it did not know, nor should it have known, of

Raucci's alleged conduct (see Ferrante v American Lung Assn., 90

NY2d 623, 631 [1997]; Sutherland v Roman Catholic Diocese of

Rochester, 39 AD3d 1151, 1152 [2007]). In particular, defendant

provided the affidavits of Stricos and San Angelo averring that

they had no awareness of Raucci's offensive email to plaintiff

concerning her appointment as messenger prior to the commencement

of this action. Further, defendant elicited testimony from

plaintiff that she assumed that Stricos knew that the mock letter

complaining of sexual harassment was a joke from Raucci, due to

the personal relationship between Raucci and Stricos and their

manner of joking with one another. 

However, viewing the evidence in the light most favorable

to plaintiff, she has successfully raised triable issues of fact

as to whether defendant should have known of Raucci's harassing

conduct, based on, among other things, the contradictory evidence

as to whether Stricos and San Angelo received Raucci's email

regarding plaintiff's appointment as messenger, the inappropriate

and suggestive nature of his mock letter to Stricos, and Raucci's

refusal to allow plaintiff to meet alone with Stricos (see

Forrest v Jewish Guild for the Blind, 3 NY3d 295, 315 [2004];

Vitale v Rosina Food Prods., 283 AD2d 141, 144, 146 [2001];

Goering v NYNEX Info. Resources Co., 209 AD2d at 835). For the

foregoing reasons, Supreme Court's orders are affirmed.

Stein, Garry, Egan Jr. and Devine, JJ., concur.

ORDERED that the orders are affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court