Sawka v. ADP Inc, No. 3:2013cv00754 - Document 61 (D. Conn. 2015)

Court Description: ORDER granting in part and denying in part 42 Motion for Summary Judgment. Signed by Judge Victor A. Bolden on 9/29/2015. (Dearing, S.)

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Sawka v. ADP Inc Doc. 61 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT DANIEL SAWKA, Plaintiff, v. CASE NO. 3:13-cv-754 (VAB) ADP, INC., Defendant. RU LIN G ON D EFEN D AN T’S MOTION FOR SU MMARY JU D GMEN T Plaintiff, Daniel Sawka, sued his form er em ployer, ADP, Inc. (“ADP”), claim ing that its m anagers and em ployees inappropriately sexually harassed him , because he posed nude for Playgirl Magazine in 1991. See Com pl., ECF No. 1. He claim s that this harassm ent constituted discrim ination against him on the basis of his sex in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §20 0 0 e et seq., and the Connecticut Fair Em ploym ent Practices Act (“CFEPA”), Conn. Gen. Stat. §46a-51 et seq. Com pl. at First, Second, Third, and Fifth Counts, ECF No. 1. Mr. Sawka also alleges that, as a result of the harassm ent, his job perform ance declined and he suffered depression, hum iliation, and em barrassm ent. Com pl. ¶¶56-60 , 62-65, 68-71, 79-82, ECF No. 1. He also claim s that ADP retaliated against him when he com plained about the harassm ent in violation of the sam e statutes. Id. at Fourth and Sixth Counts. Finally, he asserted, in his Com plaint, claim s for negligent and intentional infliction of em otional distress. Id. at Seventh and Eighth Counts. On ADP’s Rule 12(b)(6) m otion, the Court dism issed his claim for negligent infliction of em otional distress. Mot. to Dism iss Ruling 12-14, ECF No. 31; Fed. R. Civ. P. 12(b)(6). It perm itted the rem aining seven claim s to proceed to discovery. Id. ADP 1 Dockets.Justia.com has now m oved for sum m ary judgm ent on all of the seven rem aining claim s. Mot. for Sum m . J ., ECF No. 42. For the following reasons, ADP’s m otion is GRAN TED IN PART and D EN IED IN PART. I. STATEMEN T OF FACTS 1 Mr. Sawka posed nude for Playgirl Magazine in 1991. Def.’s Local Rule 56(a)1 Stm t. ¶31, ECF No. 43. At least one of these photographs had a lum berjack them e, showing Mr. Sawka in the woods holding an ax. Id. ¶33. These photographs were originally published only in paper form in May 1992 but eventually, and at som e tim e prior to Mr. Sawka’s em ploym ent at ADP, becam e available on the Internet and could be located by a Google search. Id. ¶32; Def.’s Ex A., Sawka Dep. 83:13-14. Mr. Sawka’s core allegation in this lawsuit is that his colleagues and m anagers at ADP discovered these photographs online, looked at them frequently in the workplace, and verbally harassed him regarding their content and existence. Pl.’s Counterstm t. ¶¶ 1-38, ECF No. 54-2. He claim s that this alleged harassm ent negatively im pacted his work perform ance, caused anxiety, panic attacks, and depression, em barrassed and hum iliated him , and ultim ately caused him to resign from ADP. Id. ¶¶27, 50 , 52-54; Def.’s Ex. A, Sawka Dep. 64:5-12. Mr. Sawka was hired by ADP as a “District Manager,” or salesperson, in Novem ber 20 0 9 for its “Sm all Business Services Division.” Def.’s Local Rule 56(a)1 Stm t., ¶¶ 6-7, ECF No. 43. He was initially based in ADP’s office located in Windsor, Connecticut but m oved to the office in Milford, Connecticut in April 20 10 . Id. ¶8; Def.’s Ex. A, Sawka Dep. 39:2-14. Som e com ponents of Mr. Sawka’s job required him to be 1 These facts are based on a review of the pleadings, Local Rule 56(a) Statem ents, and any responses, as well as exhibits filed by both parties accom panying the Motion for Sum m ary J udgm ent and related briefing. Unless noted otherwise, facts described in this section are undisputed or the opposing party has not pointed to any contradictory evidence in the record. 2 physically present in the office, others required him to be out in the field m aking sales. Def.’s Local Rule 56(a)1 Stm t. ¶¶11-14, ECF No. 43; Pl.’s Local Rule 56(a)2 Stm t. ¶11-13, ECF No. 54-2.2 Mr. Sawka’s perform ance at ADP was “m easured on a num ber of different bases, including the num ber of ‘starts,’ when a client paid for and began to receive ADP’s services [for the first tim e], and the num ber of ‘sales,’ when a client signed a sales order agreeing to ADP’s pricing, a power of attorney for tax m oney m ovem ent, and a client account agreem ent.” Def.’s Local Rule 56(a)1 Stm t. ¶16, ECF No. 43. He also becam e subject to a quota two or three m onths after he began working for ADP, m eaning that ADP expected him to m ake a certain dollar am ount in sales per m onth. Id. ¶15; Def.’s Ex. A, Sawka Dep. 96:10 -16. Initially, Mr. Sawka m et ADP’s sales goals. Def.’s Local Rule 56(a)1 Stm t. ¶¶1720 , ECF No. 43. Beginning in the last quarter of 20 10 (October through Decem ber), Mr. Sawka failed to m eet his “starts” quota. Id. ¶21. He had a series of e-m ail discussions and in-person m eetings with m anagem ent from December 20 10 to J anuary 20 11 to discuss these low sales results. See id. ¶¶ 22-27, 29-30 , 34. At one of these m eetings, Mr. Sawka was asked to sign a “Perform ance Im provem ent Plan – Warning” but refused to do so. Id. ¶¶ 27-28.3 This warning was a statem ent that Mr. Sawka would be “expected to dem onstrate significant im provem ent” and if he failed to do so, “further 2 The parties dispute how much time Mr. Sawka actually spent in the office at ADP. Id. Mr. Sawka asserts that he was required to report to the office every day at times and that he would spend “whole days” in the office on occasion. Pl.’s Local Rule 56(a)2 Stm t. ¶¶11-12, ECF No. 54-2. ADP contends that Mr. Sawka spent only about half of his working tim e in the office, citing Mr. Sawka’s own testim ony. Def.’s Local Rule 56(a)1 Stm t. ¶11, ECF No. 43 (citing Def.’s Ex. A, Sawka Dep. 33, 219). 3 Mr. Sawka does not directly controvert paragraph 28 , but rather provides m ore of an explanation for why he refused to sign the Perform ance Im provem ent Plan Warning. Pl.’s Local Rule 56(a)2 Stm t. ¶28, ECF No. 54-2. He claim s he had not been placed on “initial warning” as of the date of the Plan Warning, which was backdated. Id. 3 corrective action, up to and including term ination, m ay occur.” See Def.’s Exs. F, I, Perform ance Im proved Plan - Warnings. During one of these m eetings, on J anuary 17, 20 11, Mr. Sawka m entioned to Theresa Madden that his colleagues were searching the Internet for his nude photographs from Playgirl Magazine, viewing them at the office, and harassing him about them while at work. Def.’s Local Rule 56(a)1 Stm t. ¶¶35-36, ECF No. 43. He told Ms. Madden that this conduct had occurred the entire tim e he was em ployed at ADP. Id. ¶36. Ms. Madden was “Director, HR Business Partner,” and Mr. Sawka’s dedicated hum an resources contact, whose job duties included investigating sexual harassm ent com plaints. Id. ¶¶2, 4.4 Both sides agree that this J anuary 17, 20 11 m eeting was the first and only tim e Mr. Sawka com plained to Hum an Resources that he was feeling harassed and discrim inated against by his colleagues because of the Playgirl Magazine photographs. Id. ¶¶37-38.5 However, as will be described in further detail below, Mr. Sawka contends that ADP m anagers had been aware of the harassm ent for som e tim e prior to his form al com plaint. See Pl.’s Local Rule 56(a)2 Stm t. ¶¶37-38, ECF No. 54-2. Ms. Madden and one of ADP’s attorneys, Ms. J oan Ibsen, investigated Mr. Sawka’s harassm ent com plaint by interviewing a list of witnesses he provided them , as well as som e other em ployees. Def.’s Local Rule 56(a)1 Stm t. ¶¶39-43, ECF No. 43; Def.’s Ex. J , E-m ail dated 1/ 17/ 20 11 (from Mr. Sawka providing a list of nam es); Def.’s Ex. L, Madden Dep. 15:7-22 (noting that the “plan” for the investigation was to speak to 4 Because she was based in New J ersey at the time, her discussions with Mr. Sawka occurred by phone. Pl.’s Ex. A, Sawka Dep. 145:2-12. 5 ADP believes that this evidence undercuts the credibility of Mr. Sawka’s testimony that he felt harassed. It reasons that if he were truly upset by the conduct of his colleagues, he would have m entioned it earlier and m ore often. See e.g., Mot. for Sum m . J . 7, ECF No. 42-1. At this stage, however, the Court m ust credit Mr. Sawka’s version of events. See Kay tor v. Elec. Boat Corp., 60 9 F.3d 537, 546 (2d Cir. 20 10 ) (citations om itted). 4 witnesses).6 Ms. Madden testified that virtually all em ployees that were interviewed during the investigation had at least a general awareness that Mr. Sawka posed nude for Playgirl Magazine. Pl.’s Ex. B, Madden Dep. 76:24-77:6. ADP’s internal report, which m em orialized the investigation and was signed by Ms. Madden, concluded that “[f]ellow associates were googling past pictures an d com m ents were m ade at roll call m eetings and an associate [, Dan Esposito,] had an inappropriate discussion about the topic at a Quota Busters dinner with the com plainant.” Def.’s Ex. K, Ibsen Aff., Ex. 1, Ethics Hotline Confidential Mem orandum dated 1/ 17/ 20 11; Pl.’s Ex. B, Madden Dep. 54:6-21 (identifying Mr. Esposito as the associate who m ade the com m ents at the “Quota Busters” dinner and indicating the com m ents involved the Playgirl Magazine photographs). The investigation also uncovered that m anagers Ryan Errico and Bruce Bishop were aware that em ployees were searching the Internet for Mr. Sawka’s photographs. Pl.’s Ex. B, Madden Dep. 35:3-15, 57:13-58:12; Def.’s Local Rule 56(a)1 Stm t. ¶¶9-10 (identifying Mr. Errico as a m anager to whom Mr. Sawka reported). In addition, witnesses recalled the term s “lum berjack” and “tim ber” being used at roll call m eetings but could not identify specifically who m ade the com m ents. Def.’s Local Rule 56(a)1 Stm t. ¶46, ECF No. 43. Roll call m eetings were held weekly and provided 6 ADP claim s that it spoke to all of the current em ployees Mr. Sawka identified as witnesses. Mot. for Sum m . J . 9, ECF No. 42-1. The Court finds record evidence that all but Mike Zacarro, Kelly Waddock, and J oe Pivarnick were interviewed or spoken to by ADP in som e capacity about Mr. Sawka’s complaint. See Def.’s Ex. L, Madden Dep. 15:16-17, 38:11-14, 40 :15-16, 47:6-9; Def.’s Ex. K, Ibsen Aff., Ex. 1, Ethics Hotline Confidential Mem orandum dated 1/ 17/ 20 11. Ms. Madden recalled that Mr. Sawka identified Ms. Waddock as a witness but does not specifically testify about speaking with her during the investigation. Def.’s Ex. L, Madden Dep. 11:7-10 . There is no evidence in the record that ADP interviewed Ms. Alvord who was not identified by Mr. Sawka in his e-m ail. Def.’s Ex. J , E-m ail dated 1/ 17/ 20 11; see also Mot. for Sum m . J . 14, ECF No. 42-1. The Court has not record evidence that ADP interviewed Grant Cook or J onathan Kaplan, who it contends no longer worked for ADP at the tim e Mr. Sawka m ade his com plaint. The Court also has no record evidence that ADP interviewed the following individuals who Mr. Sawka now claim s were involved in the harassm ent: J am es Leduc, Dani Briggs, Stephen Lanzit, J ohn Walsh, Travis Drew, Alexa Buchwald, or Mike Gregor. 5 everyone in the Sm all Business Services Division an opportunity to m eet and discuss sales for the prior week or m onth. Def.’s Ex. A, Sawka Dep. 35:2-11, 35:20 -36:1. However, ADP concluded that its investigation did not reveal that any em ployees were searching for or viewing the pictures in the workplace. Pl.’s Ex. B, Madden Dep. 43:3-5. Only one of Mr. Sawka’s colleagues adm itted viewing the photographs during the investigation and said that she did so on her personal com puter at hom e. Def.’s Local 56(a)1 Stm t. ¶¶44-45, ECF No. 43 1; Def.’s Ex. L, Madden Dep. 21:18-23, 45:1946:3; Pl.’s Ex. B, Madden Dep. 77:7-10 . The other em ployees ADP interviewed denied viewing the photographs, but a few indicated that they had tried to search for them in the workplace. Def.’s Ex. L, Madden Dep. 45:19-46:3. Mr. Sawka criticizes the m anner in which ADP conducted its investigation. He argues that the investigation was inadequate because ADP never inspected the com pany’s com puters to determ ine whether the em ployees had actually been viewing the nude photographs or searching Mr. Sawka’s nam e on the Internet at work. Opp. Br. 19-20 , ECF No. 54-1; Pl.’s Counterstm t. ¶46, ECF No. 54-2.7 The parties dispute whether the appropriate witnesses were interviewed during the investigation—Mr. Sawka argues that a num ber of witnesses he identified were not interviewed, but ADP asserts that these individuals were form er em ployees. In addition, Ms. Madden did not share the full results of the investigation when Mr. Sawka requested them in February 20 11. Def.’s Ex. A, Sawka Dep. 184:12-185:8. Mr. Sawka testified that Ms. Madden had an “adversarial attitude” toward him , was “disrespectful” and “dem eaning” to him , and yelled at him when he requested the results. Id. 185:21-186:1, 191:10 -16, 20 0 :13-14. 7 Both sides agree that the investigation did not involve a search of com puters to verify em ployees’ Internet activity. Pl.’s Ex. B, Madden Dep. 30 :8-11; Def.’s Ex. L, Madden Dep. 46:13-25. 6 Mr. Sawka also argues that ADP’s investigation results, as the com pany articulates them , do not provide a com plete picture of the harassm ent he experienced. Mr. Sawka contends that “constant” harassm ent occurred “throughout” his em ploym ent at ADP. Pl.’s Counterstm t. ¶¶1-2, 28, 33, ECF No. 54-2; see e.g., Def.’s Ex. A, Sawka Dep. 165:18-19; see also e.g., Pl.’s Ex. A, Sawka Dep. 177:3-6.8 According to Mr. Sawka, as corroborated by three of his colleagues, his nude pictures were viewed by a num ber of his colleagues in the workplace, and num erous com m ents were m ade to him about them . See Pl.’s Counterstm t. ¶¶1-38, ECF No. 54-2; Pl.’s Ex. E, Razette Aff. at 1; Pl.’s Ex. F, Zaccaro Aff. at 1; Pl.’s Ex. G, Waddock Aff. at 1; see also e.g., Pl.’s Ex. D, Razette Dep. 16:20 -17:15, 18:4-12; Def.’s Ex. A, Sawka Dep. 167:15-20 . Testim ony in the record also supports the notion that som e of these com m ents involved the “details of both his physique and genitals.” See Pl.’s Ex. E, Razette Aff. at 1 (“There were [ ] num erous conversations while I was present regarding the content of the photos and details of both his physique and his genitals.”) 9 ; see also e.g., Pl.’s Ex. A. Sawka Dep. 195:2-18. He also testified that the harassm ent “got worse” when he m oved to the Milford office, beginning in April 20 10 , because it happened “m ore frequently” and in m ore public settings. Pl.’s Ex. A, Sawka Dep. 232:6-233:24. 8 ADP objects to m uch of Mr. Sawka’s testim ony that supports these generalized allegations as hearsay; indeed Mr. Sawka adm its that he heard m any of the facts that enable him to m ake these generalized allegations from others. See e.g. Def.’s Ex. A, Sawka Dep. 154:1-18, 168:2-6, 172:12-22. Com m ents indicating that everyone around the office knew about the photographs are not hearsay. However, m any portions of Mr. Sawka’s deposition do constitute hearsay in their current form . The Court will still consider them at this stage because they could be presented in adm issible form at trial by calling as witnesses directly the individuals who told Mr. Sawka what they observed. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“We do not m ean that the nonm oving party m ust produce evidence in a form that would be adm issible at trial in order to avoid summ ary judgm ent.”); Fraser v. Goodale, 342 F.3d 10 32, 10 36 (9th Cir. 20 0 3) (“At the summ ary judgm ent stage, we do not focus on the adm issibility of the evidence’s form . We instead focus on the adm issibility of its contents”), cert. denied, 541 U.S. 937 (20 0 4). 9 When asked at his deposition, Mr. Razette could not recall any specific exam ples of these kinds of com m ents. Pl.’s Ex. D, Razette Dep. 24:14-23. 7 Many of ADP’s em ployees m ade com m ents that generally referenced the existence of the photographs and/ or their lum berjack them e in the workplace. See Pl.’s Local Rule 56(a)2 Stm t. ¶¶8, 12-13, 18, 22, 29-30 , 32, ECF No. 54-2; Pl.’s Ex. D, Razette Dep. 14:12-24. Mr. Sawka indicates that throughout his tim e at ADP, he was referred to as “tim ber, lum berjack, [and] Ranger Dan” by various individuals, including J ohn Walsh and Travis Drew as well as Mike Gregor, who m ade “periodic com m ents” of that nature. Pl.’s Ex. A Sawka Dep. 165:12-17, 169:21-25, 175:1-176:5,. Consistent with the results of ADP’s investigation, Mr. Sawka also shows that sim ilar com m ents were also m ade at several roll call m eetings when his picture was put up in a presentation.10 Id. 173:25-174:8; Pl.’s Ex. E, Razette Aff. at 1; Pl.’s Ex. F, Zaccaro Aff. at 1; Pl.’s Ex. G, Waddock Aff. at 1.11 During his deposition, Mr. Sawka observed that these kinds of com m ents occurred “so frequently” that he could not rem em ber the details of every encounter. See Pl.’s Ex. A, Sawka Dep. 149:20 -22, 150 :3-7, 167:6-13, 169:14-20 . However, he did recall the specifics of a few incidents. For exam ple, in Novem ber of 20 0 9, J am es Leduc, an ADP em ployee, said that other em ployees were searching the Internet for the Playgirl pictures and showing them to others in the office and that “everybody in the office knew about it.” Pl.’s Counterstm t. ¶¶10 -11, ECF No. 54-2; Def.’s Ex. A, Sawka Dep. 161:7-20 . In April or May 20 10 , “[t]wo com plete strangers” asked him at training whether he was “the one,” which in his view referred to the photographs. Def.’s Ex. A, Sawka Dep. 10 Mr. Sawka explained that the picture of each em ployee who m ade sales during the prior week was projected onto a screen during the roll call m eetings with that individual’s sales numbers for the week. Id. 36:2-15. 11 The parties dispute when these comm ents were m ade. Mr. Sawka testified that they occurred when he was in the Milford office, April 20 10 and later. Pl.’s Ex. A, Sawka Dep. 174:6-25 (noting that these com m ents were m ade in the Milford office, at which Mr. Sawka worked beginning in April 20 10 ). Ms. Madden testified that these com m ents had not happened recently, when she was conducting her investigation in early 20 11. Pl.’s Ex. B, Madden Dep. 43:17-25. 8 173:4-15. He also testified that Ms. Waddock told him at an unspecified date and tim e that she looked at the pictures at hom e at night. Pl.’s Counterstm t ¶ 13, ECF No. 54-2; Def.’s Ex. A, Sawka Dep. 163:17-21. Mr. Sawka also testified that on an unknown date a m anager, Christina Theokary¸ “m ight have said som ething about, you know, the woods or were you in the woods this weekend? Did you chop a tree down?.” Pl.’s Local Rule 56(a)2 Stm t. ¶53, ECF No. 54-2. He also claim s that Bruce Bishop m ade com m ents about the photographs but could not recall specifically what they were. Def.’s Ex. A, Sawka Dep. 265:15-18. Aside from these m ore generalized allegations, Mr. Sawka has identified the following specific instances of what he believes to be harassing conduct, listed in chronological order to the extent possible. ADP does not directly dispute that these incidents occurred, but the vast m ajority of them , based on the record, did not surface during its investigation. Before April 20 10 : When Mr. Sawka was working in the Windsor office, an ADP colleague nam ed Grant Cook asked him if he “‘realize[d] how m any gay m en are probably looking at [the] pictures and m asturbating.’” Pl.’s Counterstm t. ¶9, ECF No. 54-2 (quoting Ex. A, Sawka Dep. 160 :15-18).12 Mr. Sawka testified that no one else was present at the tim e Mr. Cook m ade the com m ent. Def.’s Ex. A, Sawka Dep. 160 :25-161:6. 12 ADP contends that this com m ent was m ade in April 20 10 in its brief, but the deposition testim ony cited to support that statem ent does not contain a date but rather Mr. Sawka’s testim ony that he did not recall when the statem ent was made. Mot. for Sum m . J . 16, ECF No. 42-1 (citing Def.’s Ex. A, Sawka Dep. 160 ). Instead, Mr. Sawka testified that the com m ent was m ade while he was in the Windsor office, where he was located from Novem ber 20 0 9 through March 20 10 . See Def.’s Ex. A, Sawka Dep. 160 :19-24 (noting that Mr. Cook m ade the com ment while Mr. Sawka was working in the Windsor office, which he left in April 20 10 ), 39:2-14 (providing the timefram e during which Mr. Sawka was resident in the Windsor and Milford offices). 9 April 20 10 : Katy Alvord, another ADP em ployee, told him “everybody had seen the pictures,” and that, “you have a beautiful cock, let m e fuck the shit out of you.” Pl.’s Counterstm t. ¶5, ECF No. 54-2 (quoting Pl.’s Ex. A, Sawka Dep. 151-52, 169-170 ). April 20 10 : At a quota busters award dinner, ADP em ployee Dan Esposito loudly said, “I wanted to hate you because you have a big cock or your cock is bigger than m ine and you own a bar [ ] but you are a good guy so I can’t really hate you.” Def.’s Local Rule 56(a)1 Stm t. ¶17; Def.’s Ex. A, Sawka Dep. 164:1519. Steve Duke, ADP’s m anager of the Poughkeepsie region, heard this com m ent and laughed and said “the entire region knows about your pictures. But don’t worry about it. It’s nothing to be asham ed of.” Def.’s Ex. A, Sawka Dep. 164:10 -23. Scott Martin, a m anager, was also sitting at the table. Id. 164:24-165:1, 288:17-25; Def.’s Ex. D, Martin Aff. ¶2. When Mr. Sawka asked Mr. Esposito to stop talking about the photographs, he laughed and said Mr. Sawka did not need to worry about it and everyone had “already seen it.” Def.’s Ex. A, Sawka Dep. 165:2-7. J uly 20 10 / Sum m er 20 10 : After overhearing m en and wom en m ake com m ents about the photographs, Mr. Sawka stood up from his desk in his cubicle and asked everyone “to stop Googling him and leave him be.” Pl.’s Local Rule 56(a)2 Stm t. ¶37; Def.’s Ex. A, Sawka Dep. 157:16-158:18; Pl.’s Ex. D, Razette Dep. 26:19-24. He described the ADP offices as an “open room ” with cubicles, where, presum ably, any com m ents m ade in the room could be readily heard by both him and other em ployees. Def.’s Ex. A, Sawka Dep. 220 :3-12. Mr. Sawka contends that Ryan Errico, his direct supervisor, saw this event 10 happen, but has not provided any evidence that Mr. Errico recalls the incident. Id. 117:6-9, 159:2-10 . August 20 10 : On a trip to Yankee stadium organized by ADP, J onathan Kaplan loudly m entioned the Playgirl Magazine photographs and asked general questions about what the experience was like and what Mr. Sawka had done while posing for the photographs. Def.’s Local Rule 56(a)1 Stm t. ¶18; Pl.’s Counterstm t. ¶¶7, 15; Def.’s Ex. A, Sawka Dep. 155:3-156:17. He asked questions such as “Did they want you to have an erection, or what were you doing? Was anybody around? Were there girls on set? [ ] Who else was there?” Def.’s Ex. A, Sawka Dep. 195:11-21. Mr. Sawka testified that other em ployees, including Alexa Buckwald and Nick Razette, overhead the com m ents, and that they were m ade near David Cone 13 , which m ade the experience em barrassing. Id. 155:12-17, 156:2-15. April-October 20 10 : Som etim e between April and October 20 10 , Kelly Waddock told him while she was in the office that she was bored and that she was going to Google what happened in May of 1992, referring to the m onth and year that the relevant issue of Playgirl Magazine was released. Pl.’s Counterstm t. ¶12, ECF No. 54-2; Def.’s Ex. A, Sawka Dep. 162:16-25. When Mr. Sawka told her to stop, she laughed. Def.’s Ex. A, Sawka Dep. 163:1-5. Mr. Sawka does not know whether anyone overhead the com m ent. Id. 163:916. 13 David Cone is a form er Major League Baseball pitcher who played for the Yankees and was located near Mr. Sawka when the comm ents were m ade because he was signing autographs. Def.’s Ex. A, Sawka Dep. 155:3-7, 156:3-5. 11 April-Decem ber 20 10 : “[B]etween April 20 10 and Decem ber 20 10 ,” another ADP em ployee, Nicole Vitti, m entioned in the presence of Bruce Bishop and Mr. Sawka that she had searched for him on Google and seen “everything.” Pl.’s Counterstm t. ¶8; Def.’s Ex. A, Sawka Dep. 156:21-157:13. Mr. Sawka asked Mr. Bishop, who was a m em ber of the m anagem ent team , whether “that” was a serious “HR concern,” and Mr. Bishop laughed in response. Id. Mr. Sawka claim s that he did not report these incidents to Hum an Resources sooner, because ADP’s m anagers were com plicit in the events (because they had viewed and participated in the harassm ent), and it was em barrassing for him to discuss. Pl.’s Counterstm t. ¶¶27, 34, ECF No. 54-2. Two of his colleagues, Nick Razette and Kelly Waddock, also confirm ed that they believed the m anagers were aware that em ployees were searching for the photographs and m aking jokes and com m ents about them . Pl.’s Ex. D, Razette Dep. 15:24-16:11, 27:18-22; Pl.’s Ex. E, Razette Aff. at 1; Pl.’s Ex. G, Waddock Aff. at 1. Mr. Errico confirm ed in his testim ony that he recalled em ployees referring to Mr. Sawka as a lum berjack and that he knew the term had som e relation to his past and that he posed for photographs but not a precise understanding of that relationship until after Mr. Sawka left ADP’s em ploym ent. Def.’s Ex. C, Errico Dep. 37:20 -22, 39:18-40 :18. Mr. Sawka also claim s that ADP did not take sufficient m easures to stop the harassm ent after the investigation was com pleted. 14 He testified that he recalls fellow em ployees m aking com m ents to him about the photograph in March of 20 11 and that 14 While Mr. Razette’s Affidavit indicates that nothing was done after the investigation, he left ADP in February 20 11 and, thus, cannot indicate whether corrective action was taken after he left. Pl.’s Ex. E, Razette Aff. at 2. Ms. Waddock also attests that ADP did nothing after the investigation, but she left the com pany on March 8, 20 11. Pl.’s Ex. G, Waddock Aff. at 1. Given the tim ing and nature of these witnesses’ com m ents, neither individual’s testim ony is sufficient to show that ADP did absolutely nothing to rem edy the situation after it concluded its investigation. 12 nothing changed after the investigation. Pl.’s Ex. A, Sawka Dep. 190 :25-191:9, 192:1-8. Both sides agree that Mr. Sawka did not com plain to Hum an Resources about any further harassm ent that occurred after the investigation. Def.’s Local Rule 56(a)1 Stm t. ¶48; Pl.’s Local Rule 56(a)2 Stm t. ¶48.15 ADP’s internal report noted “ADP will take appropriate action to rem edy the situation.” Def.’s Ex. K, Ibsen Aff., Ex. 1, Ethics Hotline Confidential Mem orandum dated 1/ 17/ 20 11. As a result of the investigation, ADP inform ally spoke to Dan Esposito about the com m ents he m ade at the quota busters dinner but did not take any form al disciplinary action against him . Pl.’s Ex. B, Madden Dep. 54:6-21. ADP also claim s that it instructed Scott Martin, Vice President at the tim e of the Sm all Business Departm ent, to report anything in the office about other em ployees searching the Internet for Mr. Sawka or referring to him as a lum berjack or saying tim ber. Def.’s Supp. Br., Ex. D, Madden Dep. 55:18-56:5; Pl.’s Ex. A, Sawka Dep. 117:1-5. Mr. Sawka does not point to specific evidence contradicting these assertions, nor does he directly dispute them . Mr. Sawka testified that the harassm ent he experienced caused him em otional distress in that he suffered “[c]onstant hum iliation, harassm ent, feelings of depression, [and] anger.” Pl.’s Counterstm t. ¶¶51-52, ECF No. 54-2 (alterations in original). He also claim s that he had anxiety, headaches, panic attacks, loss of sleep, and nausea, as physical sym ptom s of his em otional distress. Id. ¶¶53-54. However, he did not seek m edical care in connection with any of these feelings or sym ptom s. Def.’s Ex. A, Sawka Dep. 64:15-22. Several of Mr. Sawka’s colleagues confirm ed that the com m ents appeared to m ake him uncom fortable or upset. See e.g. Pl.’s Ex. E, Razette Aff. at 1-2; 15 Mr. Sawka contends he did not report any additional harassm ent because Ms. Madden had yelled at him and refused to give him inform ation regarding her investigation and because no remedial action was taken, despite the fact that the investigation showed his allegations were true. Pl.’s Local Rule 56(a)2 Stmt. ¶48, ECF No. 54-2. 13 Pl.’s Ex. F, Zaccaro Aff. at 1. Mr. Sawka contends that these feelings and sym ptom s im pacted his perform ance at ADP in a “detrim ental way,” by causing him to “[m ]iss out on opportunities potentially.” Def.’s Ex. A, Sawka Dep. 270 :13-271:22. He testified. in particular, that the fact that the m anages were aware of the harassm ent and did nothing was “belittling and dem eaning and disrespectful.” Id. 273:16-19. Ultim ately, Mr. Sawka resigned from his position at ADP on March 31, 20 11. Def.’s Local Rule 56(a)1 Stm t. ¶¶49-51, ECF No. 43. He testified that he felt forced to do so because of the situation he faced in the workplace. Pl.’s Local Rule 56(a)2 Stm t. ¶51, ECF No. 54-2. In this case, he seeks com pensatory and punitive dam ages for the events described above as well as attorneys’ fees and costs, job reinstatem ent, and an injunction requiring ADP to rem ove all “adverse” inform ation from his personnel file. Com pl. at Dem and for Relief, ECF No. 1. II. STAN D ARD To grant a m otion for sum m ary judgm ent, the Court m ust determ ine that there are no genuine issues of m aterial fact in dispute and that the m oving party is entitled to judgm ent as a m atter of law. Fed. R. Civ. P. 56(a). A fact is “m aterial” if it “m ight affect the outcom e of the suit under the governing law.” Bouboulis v. Transp. W orkers Union of Am ., 442 F.3d 55, 59 (2d Cir. 20 0 6) (quoting Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 248 (1986)). A dispute regarding a m aterial fact is “genuine if the evidence is such that a reasonable jury could return a verdict for the nonm oving party.” W illiam s v. Utica Coll. of Sy racuse Univ., 453 F.3d 112, 116 (2d Cir. 20 0 6) (internal quotation m arks and citation omitted). In assessing a sum m ary judgm ent m otion, the Court m ust resolve all am biguities, including credibility questions, and draw all inferences from the 14 record as a whole in favor of the non-m oving party. See Kay tor v. Elec. Boat Corp., 60 9 F.3d 537, 546 (2d Cir. 20 10 ) (citations om itted). Under Title VII and CFEPA, claim s of em ploym ent discrim ination and retaliation are governed by the burden shifting analysis the Suprem e Court set out in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). See W einstock v. Colum bia Univ., 224 F.3d 33, 42 (2d Cir. 20 0 0 ) (citation om itted) (analyzing Title VII sex discrim ination claim s); Grey v. City of N orw alk Bd. Of Educ., 30 4 F. Supp.2d 314, 321, 328 (D. Conn. 20 0 4) (evaluating constructive discharge and hostile work environm ent claim s under Title VII and CFEPA); Reed v. A.W . Law rence & Co., Inc., 95 F.3d 1170 , 1178 (2d Cir. 1996) (in the context of a Title VII retaliation claim ). Under this fram ework, Mr. Sawka bears the initial burden of establishing a prim a facie case. W einstock, 224 F.3d at 42. Once he has m ade a prim a facie showing on all elem ents of each claim , “the burden then shifts to the em ployer to ‘articulate a legitim ate, clear, specific and nondiscrim inatory reason’ for its actions.” Grey , 30 4 F. Supp.2d at 322 (quoting Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995)); see also Terry v. Ashcroft, 336 F.3d 128, 138, 141 (2d Cir. 20 0 3) (citations om itted) (in the Title VII race and gender discrim ination and retaliation contexts). If the em ployer m akes this showing, for the case to continue past sum m ary judgm ent, the plaintiff then m ust “establish by a preponderance of the evidence that the em ployer’s stated reason was m erely a pretext for discrim ination.” See Grey , 30 4 F.Supp.2d at 322 (citing Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 143 (20 0 0 )). III. D ISCU SSION Mr. Sawka contends that ADP is liable for the sexual harassm ent its em ployees and m anagers engaged in for the year and four m onths he was em ployed there, from 15 Novem ber 20 0 9 to March 20 11. He argues that the harassm ent constituted sex-based discrim ination that created a “hostile work environm ent” and resulted in his constructive discharge, both in violation of Title VII and CFEPA. He also argues that ADP retaliated against him for com plaining about the harassm ent, also in violation of Title VII and CFEPA, and that ADP intentionally caused him em otional distress. The Court will address each of Mr. Sawka’s claim s in turn. A. Se xu al H aras s m e n t u n d e r Title VII an d CFEPA Title VII prohibits an em ployer from “discrim inat[ing] against any individual with respect to his com pensation, term s, conditions or privileges of em ploym ent because of [am ong other grounds] such individual’s [ ] sex.” 42 U.S.C. §20 0 0 e-2(a)(1). CFEPA analogously prohibits an em ployer from discrim inating against an em ployee with respect to com pensation or “conditions or privileges of em ploym ent” because of his sex, am ong other grounds. Conn. Gen. Stat. §46a-60 (a)(1). The standards governing CFEPA em ploym ent discrim ination claim s are the sam e as those governing Title VII. See Martinez v. Conn., State Library , 817 F. Supp.2d 28, 55 (D. Conn. 20 11) (collecting cases); see also e.g., Craine v. Trinity College, 259 Conn. 625, 637 n.6 (20 0 2) (“We look to federal law for guidance on interpreting state em ploym ent discrim ination law, and the analysis is the sam e under both.”) (citation om itted). Thus, the Court will analyze the claim s under both statutes together. CFEPA expressly prohibits em ployers from engaging in sexual harassm ent. Conn. Gen. Stat. §46a-60 (a)(8). Sexual harassm ent is also “[o]ne form of gender discrim ination prohibited by Title VII.” Galdieri-Am brosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986)). The Equal Em ploym ent Opportunity Com m ission (“EEOC”) 16 Guidelines define “sexual harassm ent” to include“[u]nwelcom e sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Meritor Sav. Bank, FSB, 477 U.S. at 65 (quoting 29 CFR §160 4.11(a)).16 CFEPA also defines “sexual harassm ent” as “any unwelcom e sexual advances or requests for sexual favors or any conduct of a sexual nature.” Conn. Gen. Stat. §46a-60 (a)(8). Sexual harassm ent in the workplace is actionable under Title VII and/ or CFEPA if it either results in a “hostile work environm ent” or som e kind of tangible em ploym ent action, such as firing or failing to prom ote. See Meritor Sav. Bank, FSB, 477 U.S. at 65 (distinguishing between so-called quid pro quo claim s and hostile work environm ent claim s but noting both are cognizable theories under Title VII); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752-53 (1998); see also Conn. Gen. Stat. §46a60 (a)(8). Mr. Sawka contends that that both scenarios occurred here, nam ely that a hostile work environm ent existed that resulted in his constructive discharge. Com pl. at First, Second, Third, and Fifth Counts, ECF No. 1. 1. Ms . Alvo rd Co m m e n ts - Statu te o f Lim itatio n s Before addressing the substance of Mr. Sawka’s sex discrim ination claim s under Title VII and CFEPA, the Court first m ust address a statute of lim itations issue raised by ADP in order to define the scope of relevant conduct it m ay consider. ADP argues that the Court cannot consider com ments m ade by Katy Alvord in April 20 10 because they 16 The Suprem e Court has noted that the EEOC Guidelines are persuasive but not controlling authority in evaluating Title VII claim s. See General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42 (1976) (quoting Skidm ore v. Sw ift & Co., 323 U.S. 134, 140 (1944)), superseded by statute on other grounds as recognized by Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 88-89 (1983).. 17 fall outside of the lim itations period.17 Mot. for Sum m . J . 14-15, ECF No. 42-1. The Court agrees and will not consider them . A CFEPA claim m ust be brought to the Connecticut Com m ission on Hum an Rights and Opportunities (“CHRO”) within 180 days of the last alleged act of discrim ination. Conn. Gen. Stat. §46a-82(f); see also Rivera v. Men’s W arehouse, Inc., No. 3:0 5-CV-190 7(WWE), 20 0 6 WL 180 170 5, at *3 (D. Conn. J une 27, 20 0 6). When a state agency is involved, as in this case, a Title VII claim m ust be brought to the EEOC within 30 0 days of the discrim inatory act or within 30 days of receiving notice that the state agency has term inated proceedings, whichever is earlier. 42 U.S.C. §20 0 0 e-5(e)(1) (under Title VII an EEOC charge m ust be filed within 180 days after the alleged em ploym ent practice, except when proceedings have been instituted in a state agency, like the CHRO, when a charge with the EEOC m ust have been filed within 30 0 days of the discrim inatory act or 30 days after receiving notice that the State term inated the proceedings, whichever is earlier); see also Rivera, 20 0 6 WL 180 170 5, at *3. These deadlines function like statutes of lim itation. See Van Zant v. KLM Roy al Dutch Airlines, 80 F.3d 70 8, 712 (2d Cir. 1996) (citation om itted) (Title VII); Martin v. State ADP does not raise a statute of lim itations defense with respect to any other conduct or comments relevant to this lawsuit in its sum m ary judgm ent m otion. “If a defendant fails to assert the statute of lim itations defense, the district court ordinarily should not raise it sua sponte.” Davis v. Bry an, 810 F.2d 42, 44 (2d Cir. 1987) (citations om itted); see also Day v. McDonough, 547 U.S. 198, 20 5 (20 0 6) (“A statute of lim itations defense… is not ‘jurisdictional,’ hence courts are under no obligation to raise the tim e bar sua sponte.”) (emphasis in the original) (citations omitted). Accordingly, the Court will not exam ine the applicability of a statute of lim itations defense to any of the other conduct Mr. Sawka relies on to m ake his case. See Jackson v. City of N ew York, No. 10 Civ. 7889(RMB), 20 13 WL 541510 , at *5 n.7 (S.D.N.Y. Feb. 14, 20 13) (refusing to analyze a Title VII retaliation claim in term s of the statute of lim itations, because the defendants did not specifically assert the defense with respect to that particular claim in its sum m ary judgm ent m otion); Borski v. Staten Island Rapid Transit, No0 4 CV 3614 (SLT) (CLP), 20 0 6 U.S. Dist. LEXIS 89242, at *6 n.2 (E.D.N.Y. Dec. 11, 20 0 6) (“Because Defendants m ake no specific statute of lim itations argum ent… the Court will assum e one sexually harassing act took place [within the lim itations period], and therefore consider the entire tim e period of the hostile environm ent.”). 17 18 Univ. of N .Y., 70 4 F. Supp.2d 20 2, 222 (E.D.N.Y. 20 10 ) (citations om itted) (Title VII); Rivera, 20 0 6 WL 180 170 5, at *3 (CEFPA). Mr. Sawka dual-filed a com plaint with the CHRO and the EEOC on May 31, 20 11 and received a “Release of J urisdiction” from the CHRO on April 22, 20 13, which included an EEOC case num ber. Def.’s Ex. M, CHRO Com pl.; Com pl., Ex. 1, Release of J urisdiction, ECF No. 1; Mot. to Dism iss Ruling 3, ECF No. 31. Based on the filing date of this Com plaint, the lim itations period for CFEPA began on Decem ber 2, 20 10 , and the earliest possible start date under Title VII is August 4, 20 10 . Ms. Alvord m ade her com m ents in April 20 10 , before either of these lim itations periods. Accordingly, for the Court to consider Ms. Alvord’s com m ents 18 , Mr. Sawka m ust show that her com m ents were (1) part of a continuing course of discrim inatory conduct and (2) that one act related to this discrim inatory course of conduct occurred within the lim itations period. See Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 20 0 1) (“[I]f a plaintiff has experienced a ‘continuous practice and policy of discrim ination… the com m encem ent of the statute of lim itations period m ay be delayed until the last discrim inatory act in furtherance of it.’”) (citations om itted); Petrosino v. Bell Atlantic, 385 F.3d 210 , 220 (2d Cir. 20 0 4) (“[I]n the case of a hostile work environm ent claim , the statute of lim itations requires that only one sexually harassing act dem onstrating the challenged work environm ent occur within [the lim itations period]; once that is shown, a court and jury m ay consider ‘the entire tim e period of the hostile environm ent’ in determ ining liability.”) (citation omitted). 18 The Court can consider acts from before this date as background facts, but they cannot form the basis for liability. See Fitzgerald v. Henderson, 251 F.3d 345, 365 (2d Cir. 20 0 1) (holding that certain aspects of an individual’s conduct did not constitute a continuing course of conduct and, thus, could not form the basis for a Title VII sexual harassm ent claim but noting that the evidence m ay be relevant to other aspects of the claim, including the harassing individual’s state of m ind). 19 “[A] continuing violation m ay be found ‘where specific and related instances of discrim ination are perm itted by the em ployer to continue unrem edied for so long as to am ount to a discrim inatory policy or practice.’” Fitzgerald, 251 F.3d at 359 (citation om itted). Discrete acts of discrim ination cannot constitute a continuing course of conduct. Miner v. Tow n of Cheshire, 126 F. Supp.2d 184, 190 (D. Conn 20 0 0 ) (citations om itted). To qualify, the events in question need not be related to a form al policy but also cannot be “isolated” or “sporadic” and m ust constitute a “dogged pattern.” Valenti v. Carten Controls, Inc., No. CIV. 3:94CV1769 AHN, 1997 WL 766854, at *5 (D. Conn. Dec. 4, 1997) (citation and internal quotation m arks om itted); see also Fitzgerald, 251 F.3d at 362. Crediting Mr. Sawka’s version of the facts, which the Court m ust at this stage, all of the harassing com m ents either explicitly or im plicitly involved Mr. Sawka’s genitalia and physical appearance. All of them were based on the sam e stim ulus—Mr. Sawka posing nude for Playgirl Magazine—and involved several of the sam e individuals over tim e. See Cornw ell v . Robinson, 23 F.3d 694, 70 4 (2d Cir. 1994) (affirm ing a district court’s finding that the discrim ination and harassm ent plaintiff suffered was a “continuing violation” because plaintiff suffered the “sam e kinds of harassm ent at the hands of som e of the sam e [individuals].”) However, only Ms. Alvord’s com m ent involved explicit solicitation of sex, m aking it “qualitatively different” from the other conduct. See Fitzgerald, 251 F.3d at 364-65 (rejecting application of the continuing violation doctrine because the allegedly harassing acts becam e “qualitatively different” over tim e, changing from sexual advances to harassm ent for rejecting those sexual advances). Accordingly, because Ms. Alvord’s com m ent was a clear outlier, the 20 continuing violation doctrine does not apply, and the Court will not consider her com m ent in evaluating Mr. Sawka’s claim s. 2 . H o s tile W o rk En viro n m e n t To survive sum m ary judgm ent on a hostile work environm ent claim under Title VII and CFEPA, Mr. Sawka m ust show that (1) a hostile work environm ent existed because of his gender and (2) “that a specific basis exists for im puting the conduct that created the hostile environm ent to the em ployer.” Distasio v. Perkin Elm er Corp., 157 F.3d 55, 62 (2d Cir. 1998) (citation om itted); see also Patane v. Clark, 50 8 F.3d 10 6, 113 (2d Cir. 20 0 7) (citation om itted); see also Brittell v. Dep’t. of Corr., 247 Conn. 148, 16667 (1998) (applying the sam e standards to a hostile work environm ent claim under CFEPA). The Court finds that Mr. Sawka has m et his prim a facie burden on both elem ents and raised a genuine issue of m aterial fact as to whether the conduct alleged created a hostile work environm ent and whether ADP should be liable for it. Accordingly, ADP’s m otion for sum m ary judgm ent on the hostile work environm ent claim m ust be D EN IED . a. Be ca u s e o f H is Ge n d e r “Title VII aim s to eradicate discrim ination on the basis of sex, not enact a ‘general civility code on the Am erican workplace.’” Garone v. United Parcel Serv., Inc., 436 F. Supp.2d 448, 464 (E.D.N.Y. 20 0 6) (quoting Oncale v. Sundow ner Offshore Servs., Inc., 523 U.S. 75, 79 (1998)). To fall under the am bits of Title VII and CFEPA, therefore, the offending conduct m ust have occurred because of gender. Id.; see also By ra-Grzegorczy k v. Bristol-Mey ers Squibb Co., 572 F. Supp.2d 233, 245 (D. Conn. 20 0 8) (in the context of both Title VII and CFEPA) (citation om itted). ADP argues that Mr. Sawka cannot show that the com m ents were m ade because of his gender. It argues 21 that m en m ade the m ost offensive com m ents, and that because there is no evidence that those m en sexually desired him , were hostile toward m en generally, or treated wom en differently from him , Mr. Sawka’s claim fails. Mot. for Sum m . J . 15-17, ECF No. 42-1. The Court disagrees. First, Mr. Sawka claim s that a num ber of wom en m ade com m ents and viewed the photographs, thus there is an intersexual aspect to the claim . Courts and juries have found that “it is reasonable to assum e” that proposals of sexual activity m ade to a m em ber of the opposite sex “would not have been m ade to som eone of the sam e sex.” Oncale, 523 U.S. at 80 . The only com m ents m ade by wom en here generically reference the existence of the pictures or searching for Mr. Sawka online. Because of the intersexual aspect of these interactions, and the fact that Mr. Sawka was naked in the pictures, a reasonable juror could conclude that fem ale interest in the photographs existed because of sexual desire and/ or his gender. See id. With respect to the com m ents m ade by m en, the Suprem e Court has held that sam e-sex sexual harassm ent is actionable un der Title VII so long as the plaintiff can show that the discrim ination occurred because of his or her sex. Oncale, 523 U.S. at 7981. The “harassing conduct need not be m otivated by sexual desire to support an inference of discrim ination on the basis of sex,” although that is one perm issible way of creating a reasonable inference that discrim inatory conduct occurred because of a person’s sex, as noted above in the m ale-female context. Id. at 80 . The use of “sexspecific and derogatory term s” by a m em ber of the sam e sex, indicating that the “harasser is m otivated by general hostility to the presence of [m en or] wom en in the workplace,” can create a triable question of fact on a sam e-sex discrim ination claim . Id. In addition, a plaintiff m ay also offer “directive com parative evidence” showing that one 22 sex is treated differently from the other. Id. at 80 -81. In describing these various, exem plary ways of proving sam e-sex discrim ination claim s, the Suprem e Court underscored that “whatever evidentiary route the plaintiff chooses to follow,” the ultim ate inquiry is whether the discrim ination occurred because of gender. Id. at 81. (“Whatever evidentiary route the plaintiff chooses to follow, he or she m ust always prove that the conduct at issue was not m erely tinged with offensive sexual connotations, but actually constituted discrim ina[tion]… because of… sex.” (internal quotation m arks om itted) (em phasis in original). Mr. Sawka indicates that Messrs. Esposito, Kaplan, and Cook m ade explicit references to his sex appeal and physical appearance in the photographs, including references to the size and state of his genitals. Because these com m ents referred to gender-specific aspects of Mr. Sawka’s anatom y, a juror could reasonably conclude they were m ade because of his sex, even without any evidence that they were m otivated by sexual desire. See Durkin v. Verizon N ew York, Inc., 678 F. Supp.2d 124, 135-36 (S.D.N.Y. 20 0 9) (denying sum m ary judgm ent on a hostile work environm ent because, am ong other considerations, if the jury believed that plaintiff was “treated differently” because of her breast size, the “because of gender” requirem ent would be satisfied); Redd v. New York Div. of Parole, 678 F.3d 166, 179, 181 (2d Cir. 20 12) (touching gender-specific body parts was sufficient evidence to show conduct occurred because of sex and noting that “a jury could easily infer that [the] stated desire” to touch som eone’s penis or breasts, regardless of the gender of the speaker, were m otivated by the em ployee’s gender); see also Harris v. May or and City Council, 429 F. App’x 195, 198, 20 1 (4th Cir. 20 10 ) (display of “provocative pictures” of wom en “sexualized [plaintiff’s] work place and satisfied the ‘because of’ gender requirem ent.’”); see also Dortz v. City of 23 New York, 90 4 F. Supp. 127, 150 (S.D.N.Y. 1995) (“‘[I]ntim idation and hostility toward [m en] because they are [m en] can obviously result from conduct other than explicit sexual advances.’”) (citation om itted). Even if the less specific com m ents m ade by m en, such as references to the term s tim ber or lum berjack, did not explicitly invoke gender, a jury could reasonably infer that they are gender-related in the context of the other explicitly gender-specific com m ents that were m ade and the fact that the photographs that inspired them depicted a nude m an. See cf. Brow n v. Henderson, 257 F.3d 246, 256 (2d Cir. 20 0 1) (noting that in som e cases, display in the workplace of pictures of naked individuals of a particular gender has “sufficed to support the inference that there was a sex-specific character to the course of conduct.”) (collecting cases); see also Kruger v. Securitas Sec. Servs., No. 5:0 4-CV-91, 20 0 5 WL 2417658, at *2, 4, 8 (W.D. Mich. Sept. 30 , 20 0 5) (finding under Michigan law and Title VII that circulation in the workplace of nude photographs that depicted a wom an who was purportedly but not actually the plaintiff satisfied the “because of gender” requirem ent to justify a hostile work environm ent claim but granting sum m ary judgm ent in favor of defendant on other grounds); Carlson v. C.H. Robinson W orldw ide, Inc. No. Civ. 0 2-3780 , 20 0 5 WL 75860 2, at *21 (D. Minn. Mar. 31, 20 0 5) (finding that where plaintiff’s claim was based on frequent and unwanted exposure to pornography, her claim satisfied the “based on sex” requirem ent because the photographs “alm ost exclusively involve im ages of naked wom en” and the em ployer had an open workspace “with lim ited ability for co-workers to avoid seeing each other’s screens.”); see also Kanios v. UST, Inc., No. 3:0 3CV369(DJ S), 20 0 5 WL 3579161, at *5 (D. Conn. Dec. 30 , 20 0 5) (finding that use of “gender-specific slang” and com m ents about weight gained from pregnancy satisfied the because of sex requirem ent 24 sufficiently to substantiate a sex-based hostile work environm ent claim and “could offer a jury a different perspective on other com m ents that m ay be, on their face, genderneutral.”) (citation omitted). In this case, there is also no evidence that the hostility toward Mr. Sawka existed because of a gender-neutral reason, including “workplace dynam ics unrelated to [his] sex” or personal anim us. See cf. Brow n, 257 F.3d at 256; see also cf. Dingle v. Bim bo Bakeries USA/ Entenm en’s, Nos. 11-cv-0 2879(CBA)(VVP), 13-CV-0 3913(CBA)(VVP), 13-CV-0 4141(CBA)(VVP), 20 14 WL 949967, at *2 (E.D.N.Y. Mar. 11, 20 14). Moreover, a jury could reasonably conclude that the photographs and com m ents, because they depicted or brought to m ind, respectively, nude photographs of a m an, were disproportionately offensive and dem eaning to m en. See McGullam v. Cedar Graphics, Inc., 60 9 F.3d 70 , 85 (2d Cir. 20 10 ) (finding that com m ents such as “‘bitch[y],’” “being ‘on the rag,’” or a general reference to a “‘titty bar’” were gendered term s that could be understood to be “particularly dem eaning to wom en as a group.”); see also Robinson v. Jacksonville Shipy ards, Inc., 760 F. Supp. 1486, 1522-23 (M.D. Fla. 1991) (finding, after a bench trial, that the photographs of nude and partially nude wom en that were posted in the workplace had a “disproportionately dem eaning im pact on [ ] wom en” such that they satisfied the “because of her gender” requirem ent of a sexual harassm ent-based hostile work environm ent claim ). The m ere fact that both m en and wom en were exposed to the com m ents does not preclude a finding of sexbased discrim ination. See Petrosino, 385 F.3d at 221-22 (concluding that the “sexually offensive com m ents and graffiti” at issue were “m ore offensive to wom en than to m en and, therefore, discrim inatory based on sex” even though both m en and wom en were exposed to them equally). From the foregoing analysis, the Court finds that a 25 reasonable jury could conclude that all of the com m ents about the nude photographs, m ade by m en or wom en, were m ade because of Mr. Sawka’s gender. b. H o s tile W o rk En viro n m e n t Exis te d For Mr. Sawka to m eet his burden on the question of whether a hostile work environm ent existed the Court m ust, when looking at the totality of the circum stances, find that he has created a genuine issue of m aterial fact as to whether his workplace was “perm eated with ‘discrim inatory intim idation, ridicule, and insult’ that [was] ‘sufficiently severe or pervasive to alter the conditions of [his] em ploym ent and create an abusive working environm ent.’” Harris v. Forklift Sy s., Inc., 510 U.S. 17, 21 (1993). The environm ent m ust be “both objectively and subjectively offensive.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (citation om itted) (under Title VII); accord Brittell, 247 Conn. at 167 (under CFEPA) (citation om itted). In assessing whether a hostile work environm ent existed, the Court m ay consider “the frequency of the discrim inatory conduct; its severity; whether it is physically threatening or hum iliating, or a m ere offensive utterance; and whether it unreasonably interferes with an em ployee’s work perform ance.” Distasio, 157 F.3d at 62 (citing Harris, 510 U.S. at 2122).19 Interpreting the record before it in the light m ost favorable to Mr. Sawka, the Court concludes that a reasonable juror could find that a hostile work environm ent existed. Mr. Sawka has provided sufficient evidence to create a question of fact as to whether he subjectively found the harassm en t to be sufficiently severe or pervasive. There are m ultiple sources in the record indicating that Mr. Sawka did not welcom e 19 In evaluating this claim , the Court m ay consider prior acts as “background,” regardless of whether they fall within the lim itations period. See McGullam , 60 9 F.3d at 79 (“explaining that an em ployee is not barred ‘from using… prior acts as background evidence in support of a tim ely claim .’”) (quoting N at’l R.R. Passenger Corp. v. Morgan, 536 U.S. 10 1, 113 (20 0 2)). 26 these com m ents and was upset by them . Mr. Sawka also testified that he was hum iliated and upset by his colleagues’ com m ents and that he suffered physical sym ptom s, including panic attacks and difficulty sleeping. Thus, there is sufficient evidence that would enable a reasonable juror to conclude that Mr. Sawka subjectively believed the work environm ent was pervasively offensive. See Feingold v. New York, 366 F.3d 138, 151 (2d Cir. 20 0 4) (finding that testim ony by plaintiff that the defendant’s treatm ent of him “took a psychological toll on him , causing him to becom e depressed, to dread going to work, to seek a transfer, and to lose his desire to socialize with people in general” satisfied the subjective elem ent of a hostile work environm ent claim ). To find otherwise would require an assessm ent of Mr. Sawka’s credibility, which is not an appropriate inquiry to undertake in resolving a sum m ary judgm ent m otion. See Kay tor, 60 9 F.3d at 545-46 (in deciding a sum m ary judgm ent m otion “the court ‘m ay not m ake credibility determ inations or w eigh the evidence… [those] are jury functions, not those of a judge.’”) (quoting Reeves, 530 U.S. at 150 ) (em phasis in original). ADP argues that Mr. Sawka has failed to demonstrate that the conduct that occurred was objectively offensive or pervasive enough to justify a hostile work environm ent claim because it involves nothing m ore than “office banter.” Mot. for Sum m . J . 21-22, ECF No. 42-1. The Court disagrees. A reasonable juror could conclude that these com m ents were m ore than “ordinary socializing in the workplace—such as m ale-on-m ale horseplay or intersexual flirtation.” Oncale, 523 U.S. at 81. While som e of the com m ents m ade are m ore hum iliating than others, several of the com m ents involve Mr. Sawka’s anatom y and 27 genitals and were directly m ade to him in front of other colleagues.20 Mr. Sawka has also produced evidence showing that his supervisors were aware of som e of the harassing com m ents and the fact that his colleagues were googling and viewing photographs of his naked body in the work place. A reasonable jury could find that the awareness and inaction of supervisors increased the severity of the conduct. See e.g., Strom v. Holiday Cos., 789 F. Supp. 2d 10 60 , 10 83-84 (N.D. Iowa 20 11) (noting that harassing conduct is often perceived as m ore severe or m ore difficult to com plain about or address when supervisors participate). Contrary to what ADP tries to suggest, the com m ents involved in this case were not general sharing of sexual conquests, which would likely not constitute a hostile work environm ent. See e.g., Dall v. St. Catherine of Siena Medical Ctr., 966 F. Supp.2d 167, 190 -91 (E.D.N.Y. 20 13) (frequent discussion about sex lives and showing explicit photographs did not am ount to a hostile work environm ent claim ); see also e.g., Ferrante v. MAS Med. Staffing, 20 15 U.S. Dist. LEXIS 38399, at *10 -18, 122 (D. Me. Mar. 26, 20 15) (granting sum m ary judgm ent because supervisor’s discussion of her sex life with her husband could not establish a hostile work environm ent claim ). Instead, they specifically insulted and targeted Mr. Sawka, and a reasonable jury could find that they were designed to “intim idate, ridicule or dem ean him .” Cf. Dall, 966 F. Supp.2d at 190 (distinguishing com m ents directly insulting the plaintiff or m en from generalized offensive and sexual com m ents, which could not establish a hostile work environm ent claim ). There is also uncontested evidence that Mr. Sawka’s work perform ance declined 20 However, the fact that some of the comm ents were not m ade directly in front of Mr. Sawka does not m ean that they could not have contributed to hostile work environm ent. See Dortz, 90 4 F. Supp. at 150 (concluding that offensive statem ents m ade to plaintiff’s staff, outside of his presence, m ay be viewed as having contributed to creating a hostile work environm ent and that a factfinder could conclude that such rem arks were hum iliating because they were m ade to plaintiff’s staff). 28 while he was em ployed at ADP, which a reasonable juror could conclude was attributable to the harassm ent. Mr. Sawka claim s, with record support from m ultiple sources, that the harassm ent occurred often over at least a year on a relatively frequent basis. A reasonable juror, if he believed Mr. Sawka’s testim ony about the frequency of the incidents, could find that the conduct was pervasive. See Torres v . Pisano, 116 F.3d 625, 631 (2d Cir. 1997) (“If a jury were to credit [plaintiff’s] general allegations of constant abuse, which were confirm ed by her coworkers, it could reasonably find pervasive harassm ent, even in the absence of specific details about each incident.”) (citation om itted); cf. Brennan v. Metropolitan Opera, 192 F.3d 310 , 319 (2d Cir. 1999) (finding that no reasonable juror could find a hostile work environm ent where pictures of naked m en were displayed in the workplace every day but only one “instances of sexual banter” occurred and there was no evidence of a negative im pact on plaintiff’s job perform ance). The m ere fact that Mr. Sawka does not rem em ber the details of m any of the incidents does not warrant the grant of ADP’s sum m ary judgm ent m otion alone, because he has testified that the incidents occurred frequently. See Torres, 116 F.3d at 631 (testim ony by the plaintiff that harassm ent occurred “so often that she ‘lost count’” was sufficient to defeat m otion for sum m ary judgm ent even where plaintiff could not recall the “exact dates and circum stances” of m any incidents). Taken together over a sustained period of tim e, a reasonable juror could conclude that the conduct Mr. Sawka describes constituted a hostile work environm ent. See Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 61, 63 (2d Cir. 1992) (finding that a hostile work environm ent was “established” where a m anager m ade com m ents about plaintiff’s breasts and other parts of her body, pretended to m asturbate 29 behind the plaintiff’s back to express anger at her and com m ented that if the plaintiff had m ale “bodily ‘equipm ent,’” she would have m ade m ore sales) 21; Petrosky v. New York State Dep’t, 72 F. Supp.2d 39, at 58 (N.D.N.Y. 1999) (finding that photographs of nude wom en displayed in the bathroom and in a locker com bined with “constant” “lewd and vulgar com m ents, known to but unaddressed by supervisors, concerning both [the plaintiff] and wom en generally” created a question of fact on a hostile work environm ent claim ) (citations om itted); Splunge v. Shoney ’s, Inc., 874 F. Supp. 1258, 1273-74 (M.D. Ala. 1994) (finding that com m ents about the plaintiff’s buttocks, com m ents insinuating that black wom en were better lovers, a photograph of a naked wom an tied to a bed, and public displays of affection between two colleagues were sufficient to overcom e a sum m ary judgm ent m otion on a hostile work environm ent claim ); Robinson, 760 F. Supp. at 1522, 1524-25 (finding that display of pictures of nude and partially nude wom en, sexually dem eaning comm ents and jokes, and harassm ent “lacking a sexually explicit content” justified a finding of a hostile work environm ent); Phillips v. Donahoe, Civil Action No. 12-410 , 20 13 WL 5963121, at *7-8 (W.D. Pa. Nov. 7, 20 13) (finding that the display of photographs of plaintiff’s nude body that were taken without her consent in the work place and requests for m ore “nice pictures” by another colleague created a question of m aterial fact as to whether the workplace was so hostile that it violated Title VII); Harris, 429 F. App’x at 20 2-20 3 (finding that the presence of sexually explicit pictures throughout the workplace and regular “[d]iscussions between co-workers about 21 ADP contends that this case is distinguishable from the current case because it involved a physical element. Def.’s Reply 4. However, that physical element is only described with respect to one plaintiff, not the other, whose claim also m erited judgm ent in her favor. Kotcher, 957 F.2d at 61. Moreover, physical contact is not needed to establish a hostile work environment claim based on sexual harassm ent. See e.g., How ley v. Tow n of Stratford, 217 F.3d 141, 154-55 (2d Cir. 20 0 0 ) (vacating a grant of sum m ary judgment in favor of the male defendant who did not physically touch the plaintiff but m ade loud com m ents in a group about how she was a “whining cunt” and did not “suck cock good enough” to get prom oted). 30 ‘wom en’s anatom y in a sexual m anner’ and sexual activity with wom en” sufficient to create a question of m aterial fact as to whether a hostile work environm ent existed). Adm ittedly, the question in this case is a close one, but “the question of whether a work environm ent is sufficiently hostile to violate Title VII is one of fact.” See Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir. 20 0 1); see also Oncale, 523 U.S. at 81-82 (holding that “[t]he real social im pact of workplace behavior often depends on a constellation of surrounding circum stances, expectations, and relationships which are not fully captured by a sim ple recitation of the words used or the physical acts perform ed [and that] [c]om m on sense and an appropriate sensitivity to social context [are required].”). The Second Circuit has also noted that hostile work environm ent claim s present “‘m ixed question[s] of law an d fact’ that are ‘especially well-suited for jury determ ination.’” Schiano v. Quality Pay roll Sy s., Inc., 445 F.3d 597, 60 5 (2d Cir. 20 0 6). In cases like this one where the question is close, the Court will subm it it to a jury. Accordingly, Mr. Sawka has produced sufficient evidence to create a genuine question of m aterial fact as to whether he experienced a hostile work environm ent at ADP. c. Liability o f Em p lo ye r Em ployers are not always liable under Title VII and CFEPA for hostile work environm ents created by their em ployees. See Karibian v. Colum bia Univ., 14 F.3d 773, 779 (2d Cir. 1994) (citing Meritor Sav. Bank, FSB, 477 U.S. at 72). “[A] plaintiff seeking to recover from an em ployer for [a] hostile work environm ent m ust dem onstrate som e specific basis to hold the em ployer liable for the conduct of its em ployees.” Torres, 116 F.3d at 633 (citation om itted). Mr. Sawka has produced evidence that m anagers, such as Christina Theokary and Bruce Bishop, were engaged in the harassm ent in som e 31 lim ited sense.22 His prim ary contention, however, is that his colleagues were responsible for the m ost inappropriate conduct. When an em ployee’s supervisor engages in the harassing conduct, it is “autom atically im puted to the em ployer,” unless the em ployer proves an affirm ative defense by a preponderance of the evidence. Gorzy nski v. Jetblue Airw ay s Corp., 596 F.3d 93, 10 3 (2d Cir. 20 10 ) (citations om itted); see also Faragher, 524 U.S. at 80 7 (“An em ployer is subject to vicarious liability to a victim ized em ployee for an actionable hostile work environm ent created by a supervisor with im m ediate (or successively higher) authority over the em ployee.”). To avail itself of the affirm ative defense, ADP m ust prove “(a) that the em ployer exercised reasonable care to prevent and correct prom ptly any sexually harassing behavior, and (b) that the plaintiff em ployee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the em ployer or to avoid harm otherwise.” Faragher, 524 U.S. at 80 7. “When harassm ent is perpetrated by the plaintiff’s coworkers, an em ployer will be liable if the plaintiff dem onstrates that the em ployer either provided no reasonable avenue for com plaint or knew of the harassm ent but did nothing about it.” Feingold, 366 F.3d at 152 (internal quotation m arks and citation om itted). At a m inim um , Mr. Sawka has produced evidence showing that supervisors were aware that his photographs were being searched for, viewed, and discussed by m any em ployees in the workplace. He has shown that m anagers overheard the “lum berjack” com m ents m ade at roll call m eetings and that Steven Duke directly overheard and com m ented on Mr. Esposito’s discussion of the size of Mr. Sawka’s penis. This 22 Ms. Theokary was a m anager in the Windsor office; Mr. Bishop was a m anager in the Milford office. Def.’s Ex. A, Sawka Dep. 37:14-20 . 32 knowledge was sufficient to put ADP on notice that harassing conduct was occurring, which should have prom pted an investigation. See Distasio, 157 F.3d at 62 (“An em ployer who has notice of a hostile work environm ent has a duty to take reasonable steps to elim inate it.”) (citation om itted). However, none of these supervisors took any corrective action and allowed it to continue for at least one year. Accordingly, assum ing only his colleagues were involved, Mr. Sawka has created a genuine question of m aterial fact as to whether ADP m ay be held liable for its em ployees’ creation of a hostile work environm ent. ADP argues that it had an anti-discrim ination policy in place that precludes it from being liable for the conduct of its em ployees in this case, because it provides a reasonable reporting m echanism for harassm ent com plaints that Mr. Sawka failed to use.23 Def.’s Ex. B, ADP’s Code of Business Conduct & Ethics. The policy prohibits harassm ent and provides that “[a]ssociates that believe they have been subjected to acts of harassm ent of any kind should im m ediately inform their m anager or supervisor… Any ADP m anager who receives such a com plaint or has knowledge of harassm ent or retaliation in the ADP work environm ent has an obligation to ensure that the m atter is investigated.” Id. at P0 0 0 172-73. The Court agrees that the policy existed and was distributed (indeed, Mr. Sawka testified that he reviewed the policy), but declines to find that it precludes em ployer liability in this case. Def.’s Ex. A, Sawka Dep. 178:18-179:6. While Mr. Sawka was aware of the policy, presum ably so were all of the other em ployees and m anagers who observed and did not report the harassm ent. The fact that m anagers directly observed the harassm ent and did not report it could lead a 23 The parties agree that Mr. Sawka eventually com plained, but ADP argues that there is no explanation as to why he waited so long to com plain if the harassm ent had been happening since November 20 0 9. Mot. for Sum m . J . 28-29, ECF No. 42-1. 33 reasonable juror to conclude that it was not a m eaningful “corrective opportunity” or that ADP failed to exercise “reasonable care” to prevent sexual harassm ent. See Alonzo v. Chase Manhattan Bank, N .A., 70 F. Supp.2d 395, 397-98 (S.D.N.Y. 1999) (finding that while defendant provided sufficient evidence that it had an anti-discrimination policy, the policy could not save the defendant from liability where a “senior official” knew of the harassm ent and a question of fact existed as to whether his response was reasonable). Because Mr. Sawka has shown that a genuine issue of m aterial fact exists with respect to his hostile work environm ent claim , the Court m ust D EN Y sum m ary judgm ent on this claim . 3 . Co n s tru ctive D is ch arge “An em ployee is constructively discharged when his em ployer, rather than discharging him directly, intentionally creates a work atm osphere so intolerable that he is forced to quit involuntarily.” Terry , 336 F.3d at 151-52 (citations om itted). While the em ployee need not show that an em ployer acted with specific intent to withstand sum m ary judgm ent, he “m ust at least dem onstrate that the em ployer’s actions were ‘deliberate’ and not m erely ‘negligen[t] or ineffective[ ].” Petrosino, 385 F.3d at 229230 (citation om itted) (alterations in original). He m ust also show that “viewed as a whole, [the working conditions] are ‘so difficult or unpleasant that a reasonable person in the em ployee’s shoes would have felt com pelled to resign.’” Terry , 336 F.3d at 152 (citation om itted). “Success [on a constructive discharge claim ] does not depend upon the plaintiff’s subjective beliefs.” Rivera v. Prudential Ins. Co. of Am ., No. 95-CV-0 829, 95-CV-0 830 , 1996 WL 637555, at *14 (N.D.N.Y. Oct. 21, 1996). 34 To survive sum m ary judgm ent on a constructive discharge claim , Mr. Sawka m ust produce “evidence of even m ore severe conditions” than those that create a question of fact on a hostile work environm ent claim . See Chenette v. Kenneth Cole Prods., Inc., 345 F. App’x 615, 620 (2d Cir. 20 0 9) (citation om itted); Penn. State Police v. Suders, 542 U.S. 129, 147 (20 0 4) (noting that a constructive discharge claim involves “som ething m ore” than a hostile work environm ent claim ); see also e.g., W hidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 73-74 (2d Cir. 20 0 0 ) (granting sum m ary judgm ent on a constructive discharge claim but denying it on a hostile work environm ent claim ); Lupacchino v. ADP, Inc., No. 3:0 2CV2281 (MRK), 20 0 5 WL 29350 8, at *5, 6-7 (D. Conn. J an. 21, 20 0 5) (sam e). A constructive discharge claim requires m ore because “‘[u]nless conditions are beyond ‘ordinary’ discrim ination, a com plaining em ployee is expected to rem ain on the job while seeking redress.’” Suders, 542 U.S. at 147 (quoting Perry v. Harris Chem in, Inc., 126 F.3d 10 10 , 10 15 (7th Cir. 1997)). First, there is insufficient record evidence that ADP deliberately sought to force Mr. Sawka to resign. Indeed, to the extent the evidence indicates that ADP failed to respond to the harassm ent its m anagers witnessed and to Mr. Sawka’s com plaint, ADP m ay have been negligent or reckless but there is no factual basis for characterizing its actions as intentional. See Pugni v. Reader’s Digest Ass’n, Inc., No. 0 5 Civ. 80 26(CM), 20 0 7 WL 10 87183, at * 25 (S.D.N.Y. Apr. 9, 20 0 7) (granting sum m ary judgm ent on a constructive discharge claim because, am ong other reasons, “even if plaintiff’s working conditions were actually intolerable, she has failed to adduce any evidence that [defendant] deliberately m ade them so in order to force her to resign.”). Mr. Sawka adm its that he did not inform ADP, after he com plained in J anuary 20 11, that he 35 continued to feel harassed. He resigned roughly two m onths after he com plained. These facts do not indicate that ADP acted intentionally or knew that Mr. Sawka felt harassed and allowed the behavior to continue because it wanted him to quit his job. See Suders, 542 U.S. at 149-50 (adopting the reasoning in two Circuit cases that found that even where a supervisor was acting in a problem atic way, there could be no constructive discharge claim if the em ployer proved that he or she was not officially authorized to act in that way); see also Lupacchino, 20 0 5 WL 29350 8, at *7 (em ployer’s failure to take rem edial action after receiving a CHRO com plaint of sexual harassm ent, when em ployer was not provided sufficient tim e to rem edy the situation, did not alone render working conditions sufficiently difficult to m ake a resignation a constructive discharge). Second and independent of this problem , Mr. Sawka’s claim also fails because he cannot show that the conditions were so difficult or unpleasant that a reasonable person in the em ployee’s situation would have resigned. Even drawing all inferences in Mr. Sawka’s favor and considering Ms. Alvord’s com m ents, courts finding a question of m aterial fact on a constructive discharge claim have required m ore severe and serious conduct than what occurred in this case. See e.g., Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996) (finding sum m ary judgm ent was inappropriate on constructively discharge claim where plaintiff’s boss repeatedly insulted her in front of others, m ocked her, criticized her severely despite her strong perform ance and “engaged in a pattern of baseless criticism s”); Cham blee v. Harris & Harris, Inc., 154 F. Supp.2d 670 , 676 (S.D.N.Y. 20 0 1) (denying sum m ary judgm ent where plaintiff had sex with her boss and contended that he subsequently “harassed and groped her at every opportunity he had at work; that he explicitly tied her possibility of a prom otion to her having sex 36 with him ; and that he exposed him self to her.”) ; D’Angelo v. W orld W restling Entm ’t, Inc., No. 3:0 8-CV-1548 (J CH), 20 10 WL 4226479, at * 5-6 (D. Conn. Oct. 18, 20 10 ) (denying sum m ary judgm ent where plaintiff claim s to have endured a “constant stream of sexual com m ents, as well as physical m olestations, by her direct supervisor.”). Moreover, Mr. Sawka endured the harassm ent for at least one year. The vast m ajority of the specific incidents of harassm ent that he recalls occurred before Septem ber 20 10 , six m onths before he resigned. He does not recall any specific incidents that occurred in 20 11; Mr. Sawka, therefore, resigned at least three m onths after the last specific incident of harassm ent he recalls experiencing. He does not claim , nor are there facts in the record to support, that ADP “‘ratcheted’ the harassm ent up [in 20 11] to ‘the breaking point’ for a reasonable person in [Mr. Sawka’s] situation.” Petrosino, 385 F.3d at 230 (quoting Suders, 542 U.S. at 147-48) (finding no constructive discharge despite hostile work environm ent based on conduct that occurred over eight years); W oodcock v. Montefiore Med. Ctr. Univ. Hosp., No. 98-CV-4420 , 20 0 2 WL 40 360 1, at *7-8 (E.D.N.Y. J an. 28, 20 0 2) (finding no constructive discharge where plaintiff resigned “several m onths” after m ost of the incidents upon which the claim was prem ised); see Rother v. NYS Dep’t of Corr. and Cm ty . Supervision, 970 F. Supp.2d 78, 94 (N.D.N.Y. 20 13) (finding no constructive discharge claim where “[t]he m ost egregious discrim inatory incident [ ] took place eight m onths before [plaintiff’s] retirem ent and approxim ately three m onths before she stopped working.”).24 Without this evidence, Mr. Sawka’s narrative of the claim does not add up. If, as Mr. Sawka asserts, working conditions were not so intolerable that he had to resign from April to 24 Mr. Sawka does testify that the harassment becam e worse when he m oved to the Milford office in April 20 10 , but he did not resign until roughly one whole year later. Thus, the sequence of events is still not consistent with the harassm ent progressing until a reasonable person would have reached his breaking point. 37 August 20 10 , when the m ost egregious incidents of harassm ent occurred, there is no factual basis for claim ing they were m ore intolerable in March 20 11, when he did resign. For all of the above reasons, Mr. Sawka has failed to show that he was constructively discharged and sum m ary judgm ent is hereby GRAN TED on Mr. Sawka’s constructive discharge claim under both Title VII and CFEPA. B. Re talia tio n u n d e r Title VII an d CFEPA Title VII prohibits an em ployer from discrim inating “against any of his em ployees… because [the em ployee] has opposed any practice made unlawful by this subchapter.” 42 U.S.C. §20 0 0 e-3(a). “The objective of this section is obviously to forbid an em ployer from retaliating against an em ployee because of the latter’s opposition to an unlawful em ploym ent practice.” Manoharan v. Colum bia Univ. College of Phy sicians & Surgeons, 842 F.2d 590 , 593 (2d Cir. 1988). Sim ilarly, CFEPA prohibits an em ployer from “expel[ling] or otherwise discrim inat[ing] against any person because such person has opposed any discrim inatory em ploym ent practice,” which sim ilarly prohibits retaliatory responses to com plaints about conduct falling under CFEPA. Conn. Gen. Stat. §46a-60 (a)(4). Mr. Sawka claim s that ADP retaliated against him because of the internal com plaint he m ade on J anuary 17, 20 11 to Theresa Madden about the harassm ent he experienced at ADP. Opp Br. 28, ECF No. 54-1. Mr. Sawka m akes his claim under Title VII and CFEPA, both of which require the sam e elem ents to be m et for a retaliation claim . See Fasoli v. City of Stam ford, 64 F. Supp.3d 285, 296 (D. Conn. 20 14) (citation om itted). To m ake out a prim a facie case of retaliation Mr. Sawka m ust show that (1) he engaged in a constitutionally protected activity; (2) the em ployer was aware of this 38 activity; (3) the em ployer took adverse action against him ; and (4) a causal connection exists between the protected activity and the adverse action. Reed. v. A.W . Law rence & Co., Inc., 95 F.3d 1170 , 1178 (2d Cir. 1996) (citation om itted). If Mr. Sawka m akes out a prim a facie case, as m entioned above, under McDonnell Douglas, the burden shifts to ADP to provide a legitim ate, non-discrim inatory basis for its action. See Feingold, 366 F.3d at 157 (citation om itted). The parties do not dispute that m aking a com plaint to an em ployer about sexual harassm ent is a protected activity, regardless of whether the behavior com plained of actually violated Title VII. See Kotcher, 957 F.2d at 65 (finding that m aking an internal com plaint about sexual harassm ent was a “protected activity” for the purposes of a retaliation claim ) (citation om itted); see also Galdieri-Am brosini, 136 F.3d at 292 (“[T]he plaintiff need not establish that the conduct she opposed was actually a violation of Title VII, but only that she possess a ‘good faith, reasonable believe that the underlying em ploym ent practice was unlawful’ under that statute.”) (citations om itted). They also do not dispute that ADP was aware of this com plaint. Instead, ADP argues that Mr. Sawka has failed to m eet the last two elem ents of his prim a facie case. Mot. for Sum m J . 32-33, ECF No. 42-1. The Court agrees. Mr. Sawka’s retaliation claim fails because he cannot show a causal connection between any possible adverse action and his com plaint about workplace harassm ent. To m ake a prim a facie showing of causation, “[t]he relevant inquiry [ ] m ust focus on the retaliation [ ]he suffered for com plaining about the harassm ent, not on the initial harassm ent itself.” Schiano, 445 F.3d at 60 9. The alleged adverse em ploym ent action also m ust have occurred after or in response to the protected activity. See Young v. W estchester Cnty . Dep’t Of Soc. Servs., 57 F. App’x 492, 495 (2d Cir. 20 0 3) (“[W]here the adverse action was already ongoing at the tim e of the protected activity, or is very 39 sim ilar to another adverse action that was taken before the protected activity, with no other change in relevant circum stances, logic precludes any inference of causation.”) (citing Slattery v. Sw iss Reinsurance Am . Corp., 248 F.3d 87, 95 (2d Cir. 20 0 1)). Here, m uch of the conduct that could be viewed as possibly adverse took place before Mr. Sawka com plained and thus, could not have been caused by that com plaint. For instance, Mr. Sawka received negative perform ance evaluations, which could be viewed as an adverse action, but they occurred roughly two m onths before he m ade his com plaint. Mr. Sawka also claim s that the sexual harassm ent continued after he com plained about it. In fact, the narrative of his claim is that “nothing changed” after he m ade his com plaint to Ms. Madden and the claim ed harassm ent continued just as it had before. Pl.’s Counterstm t. ¶¶47-48, ECF No. 54-2. This factual scenario, where the com plaint m ade no difference in the em ployee’s conditions, cannot substantiate a retaliation claim as a m atter of law because no causal inference can be drawn between the com plaint and the harassm ent. See Fincher v. Depository Trust and Clearing Corp., 60 4 F.3d 712, 721 (2d Cir. 20 10 ) (finding that there can be no retaliation claim where a plaintiff’s “situation in the wake of her having m ade the com plaint is the sam e as it would have been had she not brought the com plaint”); Usherenko v. Bertucci’s Corp., Civil Action No. 3:0 5-cv-756(J CH), 20 0 6 WL 3791389, at * 9 (D. Conn. Dec. 20 , 20 0 6) (dism issing a retaliation claim because there was no evidence of a causal connection between the plaintiff’s com plaint of sexual harassm ent and her leaving the defendant’s em ploym ent because plaintiff indicated that after she com plained “there was no change”). None of ADP’s actions after the com plaint was m ade in J anuary 20 11 were sufficiently “adverse” to quality as an “adverse em ploym ent action” in retaliation term s. 40 To m ake a showing of an “adverse action,” “‘a plaintiff m ust show that a reasonable em ployee would have found the challenged action m aterially adverse, which in this context m eans it well m ight have dissuaded a reasonable worker from m aking or supporting a charge of discrim ination.’” Kessler v. W estchester Cnty . Dep’t. of Soc. Servs., 461 F.3d 199, 20 7 (2d Cir. 20 0 6) (citation om itted). Because “there are no bright-line rules” regarding what constitutes an adverse action in the context of an em ploym ent-based retaliation action, the Court m ust “pore over” the facts of this case to see whether the challenged conduct “reaches the level of adverse.” Fincher, 60 4 F.3d at 721 (internal quotation m arks and citation om itted). As discussed above, Mr. Sawka’s departure from the com pany was not a constructive discharge and, therefore, cannot be an adverse em ploym ent action. 25 See e.g., Borski v. Staten Island Rapid Transit, 413 F. App’x 40 9, 411 (2d Cir. 20 11) (finding that where plaintiff failed to show a constructive discharge, a voluntary decision to leave his em ploym ent could not constitute an adverse em ploym ent action for the purposes of a retaliation claim ). Mr. Sawka also argues that ADP conducted a subpar investigation of the com plaint. However, these acts cannot constitute an adverse action for the purposes of a retaliation claim , because they are not “‘[a]ffirm ative efforts to punish a com plaining em ployee,’” nor do they contain a “threat of further harm .” Fincher, 60 4 F.3d at 721 (citation om itted) (“[A]n em ployer’s failure to investigate a complaint of discrim ination cannot be considered an adverse em ploym ent action taken in retaliation for the filing of the sam e discrimination com plaint.”). In fact, as m entioned above, Mr. 25 Mr. Sawka argues that he was constructively discharged, which satisfies the adverse em ployment action requirem ent. Opp. Br. 29, ECF No. 54-1. He does not directly argue that any of ADP’s other conduct constituted adverse em ploym ent actions, but the Court analyzes the entire circum stance in an abundance of caution. 41 Sawka contends that his situation was “the sam e as it would have been had [ ]he not brought the com plaint,” which underm ines his claim of retaliation. Id. Mr. Sawka contends that Ms. Madden yelled at him and would not share the results of her investigation. These acts are not severe or drastic enough as a m atter of law to constitute an “adverse em ploym ent action.” See Sm alls v. Allstate Ins. Co., 396 F. Supp.2d 364, 371 (S.D.N.Y. 20 0 5) (“[B]eing yelled at [and] receiving unfair criticism … do not rise to the level of adverse em ploym ent actions… because they [do] not have a m aterial im pact on the term s and conditions of Plaintiff’s em ploym ent.”) (citation om itted). It is also difficult to im agine how refusing to share results of the investigation, assum ing this is an accurate reflection of the events that occurred, could discourage em ployees from m aking those com plaints in the first place. Regardless of Mr. Sawka’s knowledge of the quality and/ or result of the investigation, he would have been in the sam e predicam ent – able to file a com plaint knowing that it would be investigated but that he would not know the results of that investigation. See Fincher, 60 4 F.3d at 72122 (finding that a defendant’s failure to investigate a com plaint was not a retaliatory adverse action because this result was unrelated to whether plaintiff filed a com plaint or not and defendant’s treatm ent of the plaintiff was consistent in either scenario). Because Mr. Sawka cannot prove that a causal connection between possible adverse acts and the filing of the com plaint or that any actions ADP took after he com plained were sufficiently “adverse,” he has failed to m ake out a prim a facie case of retaliation. Accordingly, ADP’s Motion for Sum m ary J udgm ent on Mr. Sawka’s Title VII and CFEPA retaliation claim s m ust be GRAN TED . 42 C. In te n tio n al In flictio n o f Em o tio n al D is tre s s Mr. Sawka claim s that the sexual harassment he experienced while em ployed at ADP am ounts to intentional infliction of em otional distress. He seeks to hold ADP vicariously liable for the harassing acts of its em ployees and m anagers. For Mr. Sawka to prevail on this claim , he m ust show (1) that ADP intended to inflict em otional distress or knew or should have known that em otional distress was the likely result of its conduct; (2) that the conduct was extrem e and outrageous; (3) that ADP’s conduct was the cause of his distress; and (4) that the em otional distress he sustained was “severe.” Appleton v. Bd. of Educ. Of Tow n of Stonington, 254 Conn. 20 5, 210 (20 0 0 ) (citation om itted). To survive sum m ary judgm ent on this claim , Mr. Sawka m ust show a genuine question of m aterial fact exists with respect to all of these four elem ents. See Muniz v. Kravis, 59 Conn. App. 70 4, 70 8-70 9 (Conn. App. Ct. 20 0 0 ) (a plaintiff m ust prove all four elem ents to prevail on an intentional infliction of em otional distress claim ) (citation om itted). “An em ployer’s inaction in response to com plaints of harassm ent by another em ployee alone is insufficient to establish extrem e and outrageous conduct.” See Dichello v. Martin Firearm s Co., No. CV0 650 0 296S, 20 0 7 WL 429474, at *4 (Conn. Super. Ct. J an. 22, 20 0 7). Accordingly, the Court m ust determ ine whether any em ployees engaged in extrem e and outrageous actions that can be fairly attributable to the em ployer. See e.g., Girard v. Lincoln Coll. Of New Eng., 27 F. Supp.3d 289, 30 2 (D. Conn. 20 14) (granting sum m ary judgm ent on intentional infliction of em otional distress claim s against em ployer because, am ong other reasons, acts of em ployee could not be attributed to em ployer). 43 To hold an em ployer liable for the acts of its em ployees, a plaintiff m ust show that the em ployee was acting within the scope of his em ploym ent and in furtherance of the em ployer’s business. See A-G Foods, Inc. v. Pepperidge Farm , Inc., 216 Conn. 20 0 , 20 8 (1990 ) (noting this principle in the context of intentional torts) (collecting cases); Marini v. Costco W holesale Corp., 64 F. Supp.3d 317, 331 (D. Conn. 20 14) (“[A] com pany is not liable for the intentional torts of its em ployees that are engaged in outside the scope of their em ploym ent.”) (citations om itted). In evaluating whether an em ployee was acting within the scope of his em ploym ent, courts look to whether the em ployee’s conduct: “(1) occurs prim arily within the em ployer’s authorized time and space lim its; (2) is of the type that the em ployee is em ployed to perform ; and (3) is m otivated, at least in part, by a purpose to serve the em ployer.” Harp v. King, 266 Conn. 747, 782-83 (20 0 3). “Ordinarily, the question of whether the em ployee’s tort occurred within the scope of his em ploym ent and in furtherance of his m aster’s business is a… [question of fact], but ‘there are occasional cases where a servant’s digression from duty is so clearcut that the disposition of the case becom es a m atter of law.’” Murphy v. Robert Burgess & Norw alk Econom ic Opportunity Now , Inc., No. 3:96CV0 1987(AHN), 1997 WL 529610 , at *7 (D. Conn. J uly 16, 1997) (quoting A-G Foods, Inc., 216 Conn. at 20 7). Sexual harassm ent is “usually m otivated by som ething personal, [so] ordinarily [it] does not fall within the scope of em ploym ent.” Turley v. ISG Lackaw anna, Inc., 774 F.3d 140 , 161-62 (2d Cir. 20 14) (citing Ellerth, 524 U.S. at 756-57); see also Higgins v. Metro-N orth R.R. Co., 318 F.3d 422, 426 (2d Cir. 20 0 3) (“It is well settled that sexual harassm ent ‘consisting of unwelcom e rem arks and touching is m otivated solely by 44 individual desires and serves no purpose of the em ployer.’”) (quoting Faragher, 524 U.S. at 794). There are no facts in the record from which any reasonable juror could conclude that the inappropriate com m ents that Mr. Sawka’s colleagues and m anagers m ade were m ade within the scope of their em ploym ent and in furtherance of ADP’s business. Although all of them occurred either in the workplace or at a function organized by ADP, hum iliation of the type Mr. Sawka claim s was not in any ADP em ployee’s job description, did not benefit ADP, and was prohibited by its Code of Business Conduct & Ethics. Def.’s Ex. B, ADP’s Code of Business Conduct & Ethics at P0 0 0 172-73; see also Marini, 64 F. Supp.3d at 332 (granting sum m ary judgm ent on an intentional infliction of em otional distress claim because “hum iliation and abuse of the type plaintiff alleges was not part of [em ployee’s] job description and indeed was prohibited by the term s of the Em ploym ent Agreem ent.”). Accordingly, sum m ary judgm ent m ust be GRAN TED on Mr. Sawka’s intentional infliction of em otional distress claim . 45 IV. CON CLU SION For all of the foregoing reasons, ADP’s Motion for Sum m ary J udgm ent, ECF No. 42, is GRAN TED with respect to Mr. Sawka’s constructive discharge and retaliation claim s under Title VII and CFEPA. It is also GRAN TED with respect to his intentional infliction of em otional distress claim . It is D EN IED on his hostile work environm ent claim s under Title VII and CFEPA. SO ORD ERED this 29th day of Septem ber 20 15 at Bridgeport, Connecticut. / s/ Victor A. Bolden Victor A. Bolden United States District J udge 46

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