                          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
                               -2-                518423

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.
                              -3-                518423

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
                              -4-                518423

"[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
