PRESLEY v. PEPPERIDGE FARM

RULING ON THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This is an action for damages and equitable relief broughtpursuant to Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e, as amended by the Civil Rights Act of 1991 ("TitleVII"), and Conn. Gen. Stat. § 46a-60 et seq. The plaintiffs,Twanya Presley and Sofia Tsharides, allege that their formeremployer, Pepperidge Farm, Inc., and its supervisor, RobertArocho, subjected them to a gender hostile working environmentand sexual discrimination. In addition, Presley alleges that thedefendants retaliated against her for complaining of sexualharassment in the workplace. Both plaintiffs also allegeviolations of common law precepts concerning negligentmisrepresentation, civil conspiracy, intentional infliction ofemotional distress, and negligent infliction of emotionaldistress.

The defendants now move pursuant to Rule 56 of the FederalRules of Civil Procedure for summary judgment, arguing that thereare no genuine issues of material fact, and that they areentitled to judgment as a matter of law. The issues presentedare: 1) whether the plaintiffs have raised a genuine issue ofmaterial fact that the defendants subjected them to a hostilework environment; 2) whether Presley has raised a genuine issueof material fact that the defendants retaliated against her forcomplaining of sexual harassment in the workplace; 3) whether thePage 2plaintiffs have raised a genuine issue of material fact that thedefendants subjected them to gender based discrimination; 4)whether the plaintiffs have raised a genuine issue of materialfact that Pepperidge Farm's company handbook or anti-harassmentpolicy contained negligent misrepresentations; 5) whether theplaintiffs have raised a genuine issue of material fact thatPepperidge Farm's actions amount to a civil conspiracy; 6)whether the plaintiffs have raised a genuine issue of materialfact that the defendants intentionally inflicted emotionaldistress on them; and 7) whether the plaintiffs have raised agenuine issue of material fact that the defendants negligentlyinflicted emotional distress on them.

For the reasons set forth herein, the court concludes that: 1)(a) Presley has raised a genuine issue of material fact that thedefendants subjected her to a gender hostile work environment;(b) Tsharides has failed to raise a genuine issue of materialfact that the defendants subjected her to a gender hostile workenvironment; 2) Presley has failed to raise a genuine issue ofmaterial fact that the defendants retaliated against her forcomplaining of sexual harassment in the workplace: 3) (a) Presleyhas raised a genuine issue of material fact that the defendantssubjected her to gender based discrimination; 3) (b) Tsharideshas failed to raise a genuine issue of material fact that thedefendants subjected her to gender based discrimination; 4) theplaintiffs have failed to raise a genuine issue of material factthat Pepperidge Farm's company handbook or anti-harassment policycontained negligent misrepresentations; 5) the plaintiffs havefailed to raise a genuine issue of material fact that PepperidgeFarm's actions amount to a civil conspiracy; 6) the plaintiffshave failed to raise a genuine issue of material fact that thedefendants intentionally inflicted emotional distress on them;and 7) the plaintiffs have failed raise a genuine issue ofmaterial fact that the defendants negligently inflicted emotionaldistressPage 3on them. Accordingly, the defendants motion for summary judgmentis granted in part and denied in part.

FACTS

Examination of the amended complaint, affidavits, pleadings,Local Rule 56(c) statements and exhibits accompanying the motionfor summary judgment, and the responses thereto, disclose thefollowing undisputed, material facts. The defendant, CampbellSoup Company, is a corporation authorized to transact businesswithin the State of Connecticut through its subsidiary, thedefendant, Pepperidge Farm, Inc. Pepperidge Farm employed thecodefendant, Roberto Arocho, since 1979 in its Norwalk plant.Arocho was a supervisor there for approximately ten years. At allrelevant times, the plaintiffs, Twanya Presley and SofiaTsharides, were residents of the state of Connecticut and workedat Pepperidge Farm's facility in Norwalk, Connecticut.

A. Pepperidge Farm's Anti-Harassment Policy

Throughout the time that Presley and Tsharides worked atPepperidge Farm, the company had an anti-harassment policy withcomplaint procedures. All versions of the policy prohibit anykind of sexual harassment, instruct employees to whom they cancomplain, assure the employees that the company will take promptand appropriate action, promise confidentiality, and ensure thatemployees will not be penalized or retaliated against for filinga complaint. The company posted written copies of the policy inmultiple locations in the plant where Presley and Tsharidesworked. Human resource officials walked the floor of the plant tomake themselves more accessible to employees. The company alsoinformed newly hired employees of the policy during theirorientation.Page 4

B. Presley's Claim

On August 28, 1996, Pepperidge Farm hired Presley. In February1998, Presley resigned. In June 1999, Pepperidge Farm rehiredPresley as a temporary employee in the bread department. InDecember 1999, Presley became a full-time employee as aproduction substitute in the bread department. In early 2000,Presley switched from the night shift to the day shift, andArocho became her supervisor. From June 1999 to mid-July 2001,Arocho did not say or do anything to Presley that she consideredinappropriate.

From mid-July 2001 to late August 2001, Presley alleges thatArocho committed the following acts which she argues amounts tosexual harassment. In mid-July 2001, Arocho touched Presley'shand and told her that she was attractive and that she had"pretty hair." At the time, however, Presley admits that she didnot find this incident to be offensive. On August 2, 2001, Arochotold Presley that she had nice legs. Presley told Arocho that shewas uncomfortable with that comment, and that she would pursue acomplaint if this conduct persisted. Arocho responded by tellingPresley that she was not in good standing with the companybecause she had previously filed a worker's compensation claim.On August 3, 2001, Arocho told Presley that her friendship withseveral of the men at the plant could bring her financial gaindue to her attractive physical attributes. Presley felt thisstatement insinuated that she was a prostitute of some sort.Later that same day, Arocho summoned Presley to his office,grabbed his crotch area, and asked Presley if she "wanted any ofthis." Between August 3, 2001 and August 15, 2001, Arocho wouldgaze at Presley in a leering manner. On August 15, 2001, Arochowarned her that fifty-three people could complain to humanresources about him and nothing would ever happen to him. Laterthat same date, Arocho touched Presley on herPage 5shoulder and smiled.

There is a dispute between the parties as to whether Presleytold Donald Miller, a supervisor, about Arocho's alleged sexualharassment. On August 3, 2001, Presley spoke with Miller. Presleycontends that she told Miller about Arocho's alleged conduct thathad occurred earlier that day. Specifically, Presley testifiedduring a deposition to the following: [Question] — And then on the 3rd when this thing happened with Mr. Arocho grabbing his genitals, did you tell anybody else on August 3rd about what happened? [Answer] — I didn't tell no one that day except Donald Miller what was going on. [Question] — And then you went back to him later in the day, did you tell him what Mr. Arocho had done on the 3rd? [Answer] — That's correct, yes.In contrast to Presley's contentions, Paul Macionus, PepperidgeFarm's human resources manager, testified during a depositionthat when he interviewed Miller during the investigation, Millerstated that Presley told him only that she was "uncomfortable"around Arocho. Miller also allegedly told him that Presley didnot specify what made her uncomfortable, nor did she make anyallegations of sexual harassment.

Despite the dispute as to details of this conversation, it isundisputed that Miller told Presley to report any harassment tothe human resource department, and that Presley told Miller thatshe had handled the situation. It is also undisputed that Millerdid not report Presley's statements to human resource officials.

It is not clear from the facts before the court what Miller'sduty was if Presley did tell him about Arocho's alleged sexualharassment. Presley contends that Miller had an obligation toreport inappropriate conduct to the human resources department inaccordance with the company's anti-harassment policies.Pepperidge Farm's anti-harassment policies do state thatPage 6employees can report allegations of harassment to a supervisor,but they do not state what a supervisor's duty is once he or shereceives such a report.

C. Promotion Opportunity

In August 2001, there was an opening for a quality assurancetechnician position. All applicants were initially interviewed byVanessa Diggs, a supervisor in quality assurance and friend toPresley. Diggs selected the top three candidates to interviewwith Steven White, a manager in the quality assurance department.The top candidates were Presley, Andy Saltourides, and NickSavopoulos. Saltourides and Savopoulos also participated in a"day-inthe-life" exercise where they performed certain functionsassociated with the position, so that White could evaluate theirperformances. Presley did not engage in the "day-in-the-life"exercise because she had previously performed the same functionswhile on a modified/light duty assignment in the qualityassurance department.

On or about August 31, 2001, Presley interviewed with White forthe position. Prior to the interview, Presley spoke with Diggs.Diggs secretly provided Presley with the interview questions inadvance and told Presley that she was a "shoe in" for theposition. Despite Presley's advance knowledge of the questions,White chose Saltourides for the position. According to White,Saltourides had some college education and well developedtechnical computer skills. White testified during a depositionthat he chose Saltourides because his level of motivation andoverall performance in the quality assurance department farsurpassed that of the other two candidates. Specifically, Whitetestified that Saltourides entered data into the computers withmuch more efficiency and ease than the other candidates, and healso discussed ideas with White on how to improve the process tomake it even more efficient for the company. White furtherPage 7testified that he was not confident that Presley would be able toperform all the duties that the position required because of herprior performance in the quality assurance department, as well asher lack of higher education, including a lack of math andcomputer skills.

Presley alleges that Arocho sent a negative recommendation tothe quality assurance department that caused White to decline tohire her for the position. Specifically, Presley alleges that,after the interview with White, Diggs told her that herapplication to quality assurance contained a negativerecommendation from Arocho. White gave deposition testimony,however, that he did not consult Arocho regarding any of thecandidates, including Presley.

During the same conversation with Diggs, Presley told Diggsabout Arocho's alleged harassment. Diggs then shared Presley'sallegations with White. White then called Macionus to discuss theallegations. That same day, August 31, 2001, White and Diggs metwith Macionus, whereby Diggs recounted her conversation withPresley.

D. Internal Investigation

On Tuesday, September 4, 2001, the first day back at the plantafter the Labor Day holiday weekend, Macionus and MaritzaAllende, an employee relations manager, commenced aninvestigation of Presley's allegations. In connection with theirinvestigation, Macionus and Allende interviewed Presley. Duringthe interview, Macionus told Presley that Pepperidge Farm had notolerance for sexual harassment, explained the anti-harassmentpolicy to her, and assured her that Allende and he would conducta full investigation and then inform her of their findings. Theofficials also removed Presley from Arocho's day-to-daysupervision during the investigation. On September 5, 2001,Macionus and Allende interviewed Arocho. During that meeting,Macionus and Allende reviewed with Arocho the anti-harassmentpolicy, as well as thePage 8Equal Employment Opportunity policy and the violence in theworkplace policy. They also reviewed each of Presley'sallegations with Arocho and told him that under no circumstanceswould Pepperidge Farm tolerate any type of harassing behavior.They also informed Arocho that Pepperidge Farm would not tolerateany type of retaliation. Macionus told Arocho that if PepperidgeFarm found him to have violated any of these policies, theconsequences would be severe, up to and including termination ofhis employment. According to the defendants, Arocho affirmativelyand credibly denied all of Presley's allegations. Macionus andAllende also interviewed other witnesses that Presley identified,namely, Donald Miller, Juan Martinez, and Spencer Peeples. Basedon the information from their investigation, Macionus and Allendewere unable to corroborate any of Presley's allegations andarrived at an inconclusive result.

On Friday, September 7, 2001, Macionus and Allende reported theresults of the investigation to Presley. When Macionus andAllende reported the results of the investigation to Presley,they told her that if she had any further concerns, she shouldcontact them immediately. They also told her that Pepperidge Farmwould not tolerate any kind of retaliation against her. WhilePresley alleges that Pepperidge Farm officials directed her towork with Arocho two weeks later, Presley admits that theofficials intervened soon after and provided her withreassignment elsewhere in the company's plant as she requested.On September 24, 2001, Macionus and Allende met with Presleyagain to discuss the results of the investigation. Presley admitsthat, after the investigation, Arocho did not do anything sexualtowards her again.

E. Promptness of the Presley Investigation

The prompt nature of Pepperidge Farm's investigation is indispute. Specifically, there is a dispute as to when Presleynotified Macionus and Allende that two other employees, SofiaPage 9Tsharides and Maria Giannakova, were potential witnesses in hercase. Initially, Presley testified at her deposition that she didnot notify Allende about Tsharides and Giannakova until at leastthe week after one of the meetings where Macionus and Allendediscussed the results of their investigation. It is unclear fromthe record whether Presley was referring to the meeting whichtook place on September 7, 2001 or September 24, 2001.Nevertheless, Presley has more recently submitted a transcript ofa tape recording of Allende, stating that she received a voicemail from Presley on September 5, 2001 which notified her ofTsharides and Giannakova. When confronted with the tape recordingduring a deposition hearing, however, Allende testified thatPresley did not tell her about Tsharides and Giannakova untilSeptember 25, 2001. It is also unclear when Macionus and Allendethen interviewed Tsharides and Giannakova. Allende gavedeposition testimony that she interviewed both Tsharides andGiannakova on September 25, 2001, which is the same day Allendealleges that Presley notified her. Tsharides testified during herdeposition that Macionus and Allende interviewed her in earlySeptember 2001. It is undisputed that, however, when Macionus andAllende did interview Tsharides and Giannakova, neither employeeoffered any information regarding Presley's allegations. Instead,both employees had their own allegations against Arocho which theofficials investigated and found to be unsubstantiated.

Presley alleges that the following incidents of harassmentoccurred after human resources conducted the investigation. OnDecember 7, 2001, Arocho marked Presley tardy when Presleycontends that she was not late. Arocho then told Presley that ifshe were marked tardy again, he would suspend her. As a result,Arocho required Presley to fill out a time sheet which accountedfor her whereabouts in the company plant at all times for oneweek. Presley contends that thisPage 10was unfair because no other employee was required to do so.Presley admits that when another employee informed an officialthat Arocho was requiring Presley to fill out a timesheet, theofficial immediately relieved her of that requirement. In March2002, Presley received information that Arocho's wife, who wasalso an employee at the plant, was making physical threatstowards her for pursuing a sexual harassment complaint. Presleydid not report any of these incidents to any higher levelofficial in the company. Instead, in March 2002, Presley resignedfrom her employment with Pepperidge Farm.

F. Tsharides' Claim

In May 1999, Pepperidge Farm hired Tsharides. From the end ofJuly 2001 to late August 2001, Tsharides alleges that Arochocommitted the following acts which she argues amounts to sexualharassment. In or about the end of July 2001, Tsharides visitedArocho's office one day. During this visit, Arocho rubbed both ofher hands and told her that she "made him nervous." Proximate tothis time period, Arocho attempted to touch her knees and toldher that he had the authority to do so because he was hersupervisor. In early August 2001, Arocho approached Tsharidesfrom behind, rubbed his foot against her calf, and utteredunintelligible comments. In August 2001, Arocho asked Tsharidesif she wanted "to mess around" with him. Lastly, in late August2001, Arocho approached Tsharides and told her that he wanted tohave a "threesome" with her and one of her co-workers.

G. Promptness of the Tsharides' Investigation

There is a dispute as to whether Pepperidge Farm investigatedTsharides allegations of sexual harassment in a prompt manner.Specifically, Presley has submitted a transcript of a taperecording of Allende, stating that she received a voice mail fromPresley on September 5, 2001Page 11which notified her of Tsharides. When confronted with the taperecording during a deposition hearing, however, Allende testifiedthat Presley did not tell her about Tsharides until September 25,2001. It is unclear when Macionus and Allende interviewedTsharides. Allende gave deposition testimony that she interviewedboth Tsharides on September 25, 2001, which is the same dayPresley notified her. Tsharides testified during her depositionthat Macionus and Allende interviewed her in early September2001.

It is undisputed that, however, when Macionus and Allende didconduct an investigation of Tsharides's allegations, Tsharidesrefused to name any witnesses to her allegations. As a resultMacionus and Allende were able to interview only Tsharides andArocho. During their interview with Arocho, Macionus and Allendereviewed the company's anti-harassment policy with Arocho andstressed that Pepperidge Farm would not tolerate sexualharassment of any kind. Ultimately, the officials found nocorroborating evidence of Tsharides's allegations and arrived atan inconclusive result.

Allende then reported the results of the investigation toTsharides. At that time, Allende explained to her that noretaliation would be taken against her for making the complaints.Allende also told Tsharides that she should come back if she hadany further concerns. It is undisputed that Tsharides did notreport any further alleged harassment or make any complaints ofretaliation. Instead, in March 2003, Tsharides resigned from heremployment with Pepperidge Farm.

STANDARD

Summary judgment is appropriately granted when the evidentiaryrecord shows that there are no genuine issues of material fact,and that the moving party is entitled to judgment as aPage 12matter of law. Fed.R.Civ.P. 56 (c). In determining whether therecord presents genuine issues for trial, the court must view allinferences and ambiguities in a light most favorable thenonmoving party. See Bryant v. Maffacci, 923 F.2d 979, 982(2d Cir. 1991), cert. denied, 502 U.S. 849 (1991). A plaintiffraises a genuine issue of material fact if "the jury couldreasonably find for the plaintiff." Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 252 (1986). Rule 56 "provides that the mereexistence of some alleged factual dispute between the partieswill not defeat an otherwise properly supported motion forsummary judgment; the requirement is that there is not genuineissue of material fact." Id. at 247-8.

In opposing a motion for summary judgment, the "adverse partymay not rest upon the mere allegations or denials of [its]pleading," but must "set forth specific facts showing that thereis a genuine issue for trial." Fed.R.Civ.P. 56; see D'Amicov. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). "If theadverse party does not so respond, summary judgment, ifappropriate, shall be entered against the adverse party."Fed.R.Civ.P. 56 (d). "The mere verification by affidavit of one's ownconclusory allegations is not sufficient to oppose a motion forsummary judgment." Zigmund v. Foster, 106 F. Supp. 2d 352, 356(D. Conn. 2000). Furthermore, "the mere existence of a scintillaof evidence in support of the [non-moving party's] position willbe insufficient [to avoid the entry of judgment against thenon-moving party]; there must be evidence on which the jury couldreasonably find for the [non-moving party]." Anderson,477 U.S. at 248.

DISCUSSION

1. Hostile Work Environment

A. Pervasive and SeverePage 13

The defendants argue that, "[i]n this circuit, . . . courtshave routinely held that conduct analogous to or more egregiousthan that alleged in this case was not sufficiently severe orpervasive to violate Title VII as a matter of law, even whenengaged in by a supervisor." The plaintiffs respond that "[i]nviewing the allegations set forth in [the] complaint in theirtotality and in a light most favorable to them, coupled with theevidence as set forth in this objection, this [c]ourt cannotconclude as a matter of law that Arocho's conduct was not sosevere and pervasive as to alter the terms and conditions of[the] plaintiffs' employment for the worse."

"The Supreme Court has held that Title VII is violated `[w]henthe workplace is permeated with discriminatory intimidation,ridicule, and insult, that is sufficiently severe or pervasive toalter the conditions of the victim's employment and create anabusive working environment." Mormol v. Costco Wholesale Corp.,364 F.3d 54, 58 (2d Cir. 2004) (citing Harris v. Forklift Sys.,Inc., 510 U.S. 17, 21 (1993)); Quinn v. Green Tree CreditCorp., 159 F.3d 759, 767 (2d Cir. 1998) (same). "The test for`hostile work environment' has both an objective and a subjectivecomponent: `A work environment will be considered hostile if areasonable person would have found it to be so, and if theplaintiff subjectively so perceived it.'" Mormol,364 F.3d at 58. "Whether a reasonable person would find a given workenvironment to be hostile depends on the totality of thecircumstances; `[c]onsiderations include: (1) the frequency ofthe conduct, (2) the severity of the conduct, (3) whether theconduct is physically threatening or humiliating, or a mereoffensive utterance, and (4) whether the conduct unreasonablyinterferes with the employee's work performance." Id.

a. Pervasiveness

The Second Circuit has held that, "[a]s a general rule,incidents must be more thanPage 14episodic; they must be sufficiently continuous and concerted inorder to be deemed pervasive." Alfano v. Costello,294 F.3d 365, 374 (2d Cir. 2002); see also Mormol, 364 F.3d at 59(relying on Alfano in deciding pervasiveness). In Mormol, theSecond Circuit held that six incidents occurring within thetimespan of one month were "far from being pervasive," statingthat the incidents "were few and occurred within a short span oftime." Id. at 59-60.

Similar to Mormol, the alleged harassment in the present caseconsists of several isolated incidents which took place over thetimespan of about one month. Presley alleges that seven incidentsoccurred during August 2001, and two incidents occurred duringthe first week of December 2001. Tsharides alleges that fiveincidents occurred from the end of July 2001 to the end of August2001. Furthermore, even though Presley worked for Pepperidge Farmfrom 1996 to 2002, and Tsharides worked for Pepperidge Farm from1999 to 2003, both plaintiffs admit that Arocho did not harassthem at any other time during their periods of employment.Consequently, because the alleged incidents in the present caseare similar in frequency and duration to those in Mormol, thecourt concludes that neither plaintiffs' allegations of sexualharassment are pervasive.

b. Severity

Where there is a lack of pervasiveness, the allegations ofsexual harassment must be "extraordinarily severe" for aplaintiff to prove a hostile work environment. Mormol,364 F.3d at 59; see also Quinn, 159 F.3d 759, 768 (2d Cir. 1998)(stating "where the conduct is sufficiently severe, it may alterthe plaintiff's conditions of employment without repetition"). InMormol, the plaintiff, Mormol, brought a hostile workenvironment claim against her supervisor, Ziermann,Page 15based on the following alleged incidents which occurred withinthe timespan of about one month. 364 F.3d at 56. On December 27,1999, Ziermann told Mormol that he would not approve her vacationrequest if she did not have sex with him. Id. at 55. On orabout the same day, Ziermann also offered to pay her for hoursthat she had not worked if she agreed to have sex with him. Id.Mormol rebuffed all such advances from Ziermann. Id. Later inthe month, Ziermann forced Mormol to return prematurely from hervacation for no apparent reason. Id. Specifically, Ziermanntelephoned Mormol during her vacation, telling her that, if shedid not return early from her vacation, she would be transferredor fired. Id. On January 22, 2000, the day she returned fromwork, Ziermann gave Mormol a note which stated that, if sheagreed to have sex with him, he would give her money, make her afull-time employee while permitting her to work part-time andsimply punch her card as if she were working full time, and takeher on vacations and to a fitness club. Id. Mormol once againdecline his offers. Id. The next week, Ziermann allowed Mormolto work only on three days when Mormol claimed that he previouslypromised that she could work on seven days. Id. On January 23,2000, Ziermann also "wrote up" Mormol for being five minutes latefrom a break and added a hand written statement on thedisciplinary notice which stated that the next "writeup" wouldresult in suspension or termination. Id. at 55-56. On January24, 2000, Mormol reported Ziermann's conduct to warehousemanagement and an investigation began. Id. at 56. On January26, 2000, Costco suspended Ziermann and ultimately fired him onFebruary 3, 2000. Id. The Second Circuit concluded that theseincidents were "far from being pervasive" because the incidents"were few and occurred within a short span of time." Id. at 59.The court also concluded that the harassment alleged in this casewas not sufficiently severe to overcome its lack ofpervasiveness. Id. at 59-60. As a result, thePage 16Second Circuit affirmed summary judgment in favor of thedefendants. Id. at 60.

Likewise, in Quinn, the Second Circuit affirmed summaryjudgment in favor of the defendants based on similar reasoning tothe court's decision in Mormol. See Quinn, 159 F.3d 759,768 (2d Cir. 1998). In Quinn, the plaintiff's hostile workenvironment claim rested on two allegations against hersupervisor: "(1) that he told Quinn she had been voted the`sleekest ass' in the office and (2) that, on another occasion,he `deliberately touched [Quinn's] breasts with some papers thathe was holding in his hand.'" Id. The Second Circuit held that"[t]hough the two incidents in question . . . are obviouslyoffensive and inappropriate, they are sufficiently isolated anddiscrete that a trier of fact could not reasonably conclude thatthey pervaded Quinn's work environment." Id. The court alsoheld that "[n]or are these incidents, together or separately, ofsufficient severity to alter the conditions of Quinn's employmentwithout regard to frequency or regularity." Id.

i. Tsharides' claim

Tsharides's hostile work environment claim against Arochoconsists of the following allegations. In July 2001, Arochorubbed her hands and told her that she made him nervous. Duringthis same period of time, Arocho attempted to touch her knee andtold her that he had the authority to do so because he was hersupervisor. In early August 2001, Arocho briefly rubbed his footagainst her calf and made unintelligible comments. During themiddle of August 2001, Arocho asked Tsharides if she wanted to"mess around." At the end of August 2001, Arocho told her that hewanted to "have a threesome" with her and one of her co-workers.

Arocho's statements of his desire to "mess around" and "have athreesome" with Tsharides and his statements that she "made himnervous" and that he had the authority toPage 17attempt to touch her knee because he was her supervisor are notmore severe than the sexual offers in Mormol. In Mormol, thesupervisor made several direct sexual offers to the plaintiff andconditioned such offers with threats of negative employmentactions if she refused and beneficial employment actions if sheagreed. Mormol, 364 F.3d at 55. Arocho's sexual statements arenot more severe than Ziermann's sexual offers because they werenot conditioned with work-related threats or rewards.

Additionally, Arocho's actions of touching and attempting totouch Tsharides are not more severe than the touching alleged inQuinn. In Quinn, Quinn's supervisor, Fahey, deliberatelytouched Quinn's breasts with some papers that he was holding inhis hand. Quinn, 159 F.3d at 762-763. In the present case,Arocho rubbed Tsharides's hands, attempted to touch her knee, andbriefly rubbed his foot against her calf. A woman's breasts are amore private and intimate area than her hands, knee, or calf;consequently, an unwanted deliberate touching of that area ismore offensive and, therefore, more severe.

Arocho's alleged conduct toward Tsharides is not more severethan the alleged conduct of the defendant-supervisors in Quinnand Mormol, where the Second Circuit affirmed summary judgmentin favor of the defendants. Consequently, the court likewisegrants summary judgment in favor of the defendants as toTsharides's hostile work environment claim because Arocho'sconduct is not sufficiently severe as a matter of law to overcomeits lack of pervasiveness.

ii. Presley's claim

Presley's hostile work environment claim against Arochoconsists of the followingPage 18allegations. In July 2001, Arocho touched Presley's hands andtold her that she was attractive.1 On August 2, 2001,Arocho summoned Presley to his office and told her that she hadnice legs and other attractive attributes. At the time, Presleytold Arocho that she was uncomfortable with those comments, andthat she would file a complaint if this type of behaviorpersisted. Arocho responded by telling her that she was not ingood standing with the human resources department or the companybecause of her previous worker's compensation claim. On August 3,2001, Arocho told Presley that her friendship with men at theplant could get her money because she was pretty. Presley feltthis statement insinuated that she was a prostitute of some sort.That same day, while Presley was in Arocho's office, Arochograbbed his genital area and asked Presley if she wanted "any."On August 15, 2001, Arocho told Presley that fifty-three peoplecould complain to the human resource department, and nothingwould ever happen to him. Presley claims this comment made herfeel humiliated and denigrated. Later that day, Arocho brieflyput his hand on her shoulder and smiled, which Presley states shefound taunting. On or about August 31, 2001, Presley learned fromDiggs that Arocho had given a negative recommendation to thequality assurance department concerning Presley while she wasapplying for a position in that department. Steven White, themanager of the quality assurance department, however, testifiedthat he made his hiring decision based on his own objectivecriteria and did not consider Arocho's alleged negativerecommendation. On December 7, 2001, Arocho marked Presley tardywhen Presley contends that she was not late. Arocho then toldPage 19Presley that if he marked her tardy again, he would suspend her.As a result, Arocho required Presley to fill out a time sheetwhich accounted for her whereabouts in the company plant at alltimes for one week. Presley contends that this was unfair becausethe company did not require other employees to do so. In March2002, Presley received information that Arocho's wife, who wasalso an employee at the plant, was making physical threatstowards her for pursuing a sexual harassment complaint.2

Presley's allegations of Arocho's conduct are arguably moresevere than the plaintiff's allegations of her supervisor'sconduct in Mormol. First, while the supervisor in Mormol madeseveral work-related threats, Presley alleges that Arocho sent anegative recommendation to the quality assurance department whileshe was applying for a position there. Although White testifiedthat he did not consider this recommendation when he choseanother candidate for the position, Presley contends that Diggs,a supervisor in the quality assurance department, told her thatArocho's negative recommendation was in a file with the rest ofthe information for White to consider. Consequently, there areissues of fact that are either in dispute or unresolved as toArocho's motivation and grounds for sending the negativerecommendation, and as to the effect the negative recommendationhad on Steven White's decision not to hire Presley for theposition. Viewing the evidence in a light most favorable toPresley, the court holds that a reasonable juror could find, inlight of Arocho's other conduct toward Presley, that Arocho senta negativePage 20recommendation about Presley because of her gender, and not basedon merit. A reasonable juror could further find that Arocho'snegative recommendation caused White not to hire her for theposition. If the jury were to make such findings, Arocho'snegative recommendation would be arguably more severe than thework-related threats in Mormol because Arocho did more thanthreaten by taking action which may have cost Presley theposition in the quality assurance department.

Presley's other allegations are also arguably more severe thanthe plaintiff's allegations in Mormol. Even though Ziermann'ssexual offers in Mormol were conditioned with work-relatedthreats and benefits, Arocho's sexual offer where he grabbed hiscrotch in front of Presley is more lewd and obscene and,consequently, is arguably more severe.

Arocho's responses to Presley that she was not in good standingwith the company because she filed a worker's compensation claimand that fifty-three people could complain to human resourcesabout his actions and nothing would happen to him are arguablymore severe than Ziermann's actions of not allowing Mormol towork extra hours for one week. A reasonable juror could find thatArocho was lying when he made those statements in an attempt todiscourage Presley from complaining about his behavior to theproper authorities within the company. Accordingly, Arocho'sstatements are arguably more severe than Ziermann's actionsbecause they were directly intended to prevent the remedy of thekind of behavior Title VII is designed to protect against in theemployment context.

Both Presley and the plaintiff in Mormol complained aboutbeing marked tardy on one occasion. While Ziermann's subsequentactions of threatening to suspend or fire Mormol if he marked hertardy again may be more severe than Arocho's subsequent actionsof requiringPage 21Presley to fill out a time sheet of her whereabouts in the plantfor a week's time, Presley alleges that Arocho marked her tardyfor no reason while Mormol admitted to being late. Consequently,Arocho's actions are more unjustified and arguably more severethan Ziermann's actions.

Because many of Presley's allegations are arguably more severethan the plaintiff's allegations in Mormol, a genuine issue ofmaterial fact exists as to whether Arocho's conduct towardPresley, taken together, was severe enough to overcome its lackof pervasiveness. As a result, the court denies the defendants'summary judgment motion as to Presley's hostile environmentclaim.

iii. Employer Liability

To succeed in her hostile work environment claim againstPepperidge Farm, Presley must show not only that she experiencedsevere and pervasive harassment, but also that "a specific basisexists for imputing the objectionable conduct to [PepperidgeFarm]." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002).Under Title VII, an employer is strictly liable for asupervisor's sexual harassment of an employee where theharassment culminates in a tangible employment action.Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761-763(1998); Faragher v. City of Boca Raton, 524 U.S. 775, 790, 807(1998).

A. Presley — Tangible Employment Action

Pepperidge Farm argues that "[a]s a matter of law, none of[Presley's] allegations are sufficient to establish a tangibleemployment action." Presley responds that each of the followingallegations can qualify as tangible employment actions: 1)Arocho's negative evaluation sent to the quality assurancedepartment, which caused Steven White, the manager of thedepartment, to deny her the promotion/reassignment; 2) Arochomarking her tardy withoutPage 22cause; 3) Arocho making her fill out a time sheet for one week;4) Arocho threatening to suspend her if he marked her tardyagain; and 5) Pepperidge Farm constructively discharging her.

"A tangible employment action constitutes a significant changein employment status, such as hiring, firing, failing to promote,reassignment with significantly different responsibilities, or adecision causing a significant change in benefits." BurlingtonIndustries, Inc. v. Ellerth, 524 U.S. at 761 (1998). "Tangibleemployment actions are the means by which the supervisor bringsthe official power of the enterprise to bear on subordinates."Id. at 762. "A tangible employment decision requires anofficial act of the enterprise, a company act." Id. "Thedecision in most cases is documented in official company recordsand may be subject to review by higher level supervisors." Id."A tangible employment action in most cases inflicts directeconomic harm, but there is no requirement that it must always doso." Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57 (2d Cir.2004) (internal quotations and citations omitted). "For thesereasons, a tangible employment action taken by the supervisorbecomes for Title VII purposes the act of the employer."Ellerth, 524 U.S. at 762.

Viewing the evidence in a light most favorable to Presley, thecourt concludes that there is a genuine issue of material fact asto whether Arocho's negative evaluation is a tangible employmentaction. Presley alleges that Arocho sent a negative writtenevaluation concerning her, which was untrue, to the qualityassurance department while she was applying for a position inthat department. Presley further alleges that Arocho's negativeevaluation caused White, the manager of the department, not tohire her for the position. White testified, however, that he madehis decision based on his own objective criteria and did notconsider Arocho's alleged negative evaluation. In response,Presley contends that Diggs, a supervisor in the department,Page 23told her that she saw Arocho's negative evaluation in a file withthe rest of the information to be reviewed by White before herinterview.

The court holds that Arocho's negative recommendation canqualify, as a matter of law, as a tangible employment actionbecause a reasonable juror could find that it satisfies all thecriteria that the law requires. First, a reasonable juror couldchoose to believe the testimony of Diggs that Arocho's negativerecommendation was in Presley's file for White to consider. Basedon that finding, a reasonable juror could then infer that Whitedid consider the recommendation and that it caused him to declineto hire Presley. If a reasonable juror found that Arocho'srecommendation caused White to decline to hire Presley, it wouldconstitute a significant change in Presley's employment status.Cf. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 789(6th Cir. 2000) (holding that a supervisor's downgradedevaluation of the plaintiff did not constitute a tangibleemployment action because the plaintiff did not allege that heremployer unfairly denied her a promotion as a result of theevaluation). Second, a reasonable juror could find that Arochowas using his supervisory power that Pepperidge Farm gave him inorder to evaluate Presley, a subordinate, when he sent thenegative recommendation. If a reasonable juror were to find makethese findings then Arocho's negative recommendation would be anofficial act of Pepperidge Farm. Lastly, a reasonable juror couldbelieve the testimony of Diggs that Arocho documented thenegative recommendation and placed it into official companyrecords. A reasonable juror could then draw the inference thatWhite, a higher level official in the company, reviewed it.Because a reasonable juror could find that Arocho's allegednegative recommendation satisfied all these criteria, there is agenuine issue of material fact as to whether it is a tangibleemployment action.Page 24

Presley's other allegations, however, do not qualify astangible employment actions. Specifically, Arocho's actions ofmarking Presley tardy and requiring her to fill out a time sheetfor one week, by themselves, do not constitute a significantchange in employment status, and, consequently, neither qualifiesas a tangible employment action. See Mormol, 364 F.3d at 58(holding that a supervisor's disciplinary notice did notconstitute a significant change in employment status, in part,because it did not result in any further consequences to her).Additionally, Arocho's action of threatening to suspend Presleyif he marked her tardy again is not a tangible employment actionbecause the threat was not conditioned upon Presley submitting tofurther sexual harassment, and an unfulfilled threat, by itself,is not enough. See Jin v. Metropolitan Life Ins. Co.,310 F.3d 84, 93 (2d Cir. 2002) (stating that a threat is not atangible employment action if the plaintiff is not subjected tofurther sexual harassment and the supervisor does not followthrough with his threat).

Presley also alleges that Pepperidge Farm constructivelydischarged her. Constructive discharge can qualify as a tangibleemployment action, if the plaintiff can prove: 1) the elements ofconstructive discharge, and 2) that an "official act" of theemployer underlies the constructive discharge. PennsylvaniaState Police v. Suders, 124 S.Ct. 2342, 2355 (2004). Presley'sallegation that Pepperidge Farm constructively discharged herdoes not qualify as a tangible employment action because Presleycannot prove the requisite elements of constructive discharge asset forth infra.

Constructive Discharge

The defendants argue that Presley "has failed to establish anyof the elements of a constructive discharge claim." Presleyresponds that the totality of the circumstances creates aPage 25genuine issue of material fact as to whether Pepperidge Farmconstructively discharged her.

"Constructive discharge of an employee occurs when an employer,rather than directly discharging an individual, intentionallycreates an intolerable work atmosphere that forces an employee toquit involuntarily." Whidbee v. Garzarelli Food Specialties,Inc., 223 F.3d 62, 73 (2000). "Working conditions areintolerable if they are so difficult or unpleasant that areasonable person in the employee's shoes would have feltcompelled to resign." Id. To prevail on a claim of constructivedischarge, a plaintiff must also show "deliberate action on thepart of the employer." Id. at 74. [S]omething beyond merenegligence or ineffectiveness is required." Id.

In Whidbee, the Second Circuit affirmed a district courtorder granting summary judgment for an employer on the issue ofconstructive discharge because the plaintiff-employees failed toprove a deliberate action on the part of their employer. Id. at74. In this case, a coworker, Richard Corliss, allegedly harassedtwo plaintiff employees on many occasions. Id. On June 8, 1998,the plaintiffs told their general manager, Patrick Grable, aboutthe alleged harassment. Id. Grable responded by telling theplaintiffs that he would speak to Corliss, but the plaintiffswould have to handle the problem themselves. Id. at 67. Grabledid not speak with Corliss that day. Id. The next day, June 9,Corliss allegedly harassed the plaintiffs again, and theplaintiffs immediately reported it to Grable. Id. Grableassured the plaintiffs that he would speak with Corliss, but, infact, he did not speak with Corliss. Id. On June 11, Corlisscontinued to harass the plaintiffs, so they immediately reportedthe incident to their supervisor, Tina Hanley. Id. On June 12,Hanley reported the incident to Grable. Id. That day, one ofthe plaintiffs asked Grable to meet with her, but Grable deniedher request, stating that he was too busy. Id. LaterPage 26that day, Grable did meet with Corliss and gave him a verbalwarning. Id. On June 16, the plaintiffs had a meeting withGrable to report additional harassment. Id. Grable responded bytelling the plaintiffs that "he can't control Corliss's mouth,"the plaintiffs should approach Corliss themselves, "he does notknow how to deal with the problem and does not want to deal withit because it is too much for him", and if talking to Corlissdoes not solve the problem, then the plaintiffs have to leave.Id. (internal quotations omitted). During the meeting, however,Grable also said that he and the plaintiffs should meet withCorliss, and that Corliss either has to stop the harassment or hehas to quit. Id. Grable also stated that he needed to do someresearch to find out how to stop this. Id. After the meeting,Grable issued Corliss a written warning which stated that anyfurther offensive conduct would result in disciplinary measures,up to and including termination. Id. at 68. Despite thewarning, Corliss continued to harass the plaintiffs. Id. OnJune 26, one of the plaintiffs met with Grable, Corliss, andanother member of management. Id. Corliss apologized to theplaintiff. Id. Grable told Corliss that if he continued toharass the plaintiffs, Grable would fire him. Id. On June 26,1998, both of the plaintiffs resigned.

In affirming summary judgment for the defendant-employer, theSecond Circuit held that even if "[c]ertain statements by Grable. . . might be seen as evincing a lack of concern about theplaintiffs' situation[,]" the "evidence did not support aninference that her employer intended to create intolerableworking conditions." Id. at 74. Further, the court explainedthat an employer's "demonstrated interest in retaining theplaintiffs" militated against a finding of constructivedischarge. Id.

Following the logic of the Second Circuit's decision inWhidbee, the court concludes thatPage 27there is no evidence to support an inference that Pepperidge Farmintended to create intolerable working conditions for Presley. Itis undisputed that Pepperidge Farm: 1) investigated Presley'sallegations; 2) conferred with Arocho concerning theanti-harassment policies; 3) admonished Arocho that if he wasfound to have engaged in harassment, he could be punished withjob termination; 4) removed Presley from Arocho's day to daysupervision; and 5) based on Presley's request, transferred herto a different work site in the plant. There is no evidence thatPepperidge Farm intended to create intolerable working conditionsfor Presley and, quite to the contrary, the above cited evidencepoints to a finding that Pepperidge Farm exhibited an interest inretaining her. See Whidbee v. Garzarelli Food Specialties,Inc., 223 F.3d 62, 74 (2000);3 see also Mack v. OtisElevator Co., 326 F.3d 116, 128 (2d Cir. 2003) (concluding thatthe plaintiff failed to provide evidence of deliberate action byher employer because her employer immediately began investigatingthe plaintiff's allegations of her supervisor's harassment oncethe plaintiff notified them, and her employer offered to transferthe plaintiff to a position beyond the defendantsupervisor'spower).

To summarize, the court concludes that there is a genuine issueof material fact as to whether Arocho's negative recommendationis a tangible employment action, however, Presley's otherallegations do not qualify, as a matter of law, as tangibleemployment actions.

B. Affirmative DefensePage 28

Employers are presumptively liable for a supervisor'sharassment of an employee. Ellerth, 524 U.S. at 765. In theabsence of a tangible employment action, however, an employer canavoid liability for a supervisor's alleged harassment of asubordinate if it can prove, as an affirmative defense, "(a) thatthe employer exercised reasonable care to prevent and correctpromptly any sexually harassing behavior, and (b) that theplaintiff employee unreasonably failed to take advantage of anypreventive or corrective opportunities provided by the employeror to avoid harm other wise." Id.

Pepperidge Farm and Reasonable Care

Pepperidge Farm argues that they have satisfied the first prongof the affirmative defense because "no reasonable trier of factcould find that Pepperidge Farm failed to exercise reasonablecare to prevent and correct sexually harassing behavior." Insupport of this argument, Pepperidge Farm contends that"Pepperidge Farm not only had an anti-sexual harassment policy inplace at all times during [Presley's] employment, but [that]Pepperidge Farm fully complied with that policy by conducting aprompt and thorough investigation of [Presley's] complaints,after which [Presley] conceded that the alleged harassmentceased."

Presley responds that the following allegations prove thatPepperidge Farm failed to exercise reasonable care to prevent andcorrect Arocho's sexually harassing behavior: 1) PepperidgeFarm's anti-harassment policy was unclear to employees becausethere were multiple versions of the policy in circulation at thetime of Arocho's conduct; 2) Donald Miller, a supervisor, failedto report Presley's sexual harassment allegations to the humanresource department which shows that Pepperidge Farm's responsewas inadequate; and 3) Pepperidge Farm's investigation was notdone promptly because Macionus and Allende did not interviewPage 29Tsaharides and Giannakova until twenty days after Presleynotified Allende that they were potential witnesses.

In order to satisfy the first prong the affirmative defense,Pepperidge Farm must prove that it "exercised reasonable care toprevent and correct promptly any sexually harassing behavior."Ellerth, 524 U.S. at 765. Under this analysis, the court willfirst consider whether Pepperidge Farm had an anti-harassmentpolicy with complaint procedures in existence at the time of thealleged harassment. Caridad v. Metro-North Commuter R.R.,191 F.3d 283, 295 (2d Cir. 1999). It is undisputed that, throughoutthe time that Presley worked at Pepperidge Farm, the company hadan anti-harassment policy with complaint procedures in existence.Pepperidge Farm posted written copies of the policy in multiplelocations in the plant where Presley worked. The company alsoinformed newly hired employees of the policy during theirorientation. Additionally, human resource officials walked aroundthe floor of the plant to make themselves more accessible toemployees.

Presley argues that Pepperidge Farm's anti-harassment policywas unclear to employees because there were multiple versions ofthe policy in circulation at the time of Arocho's conduct. Thecourt is not persuaded by this argument because all versions ofthe policy before the court prohibit any kind of sexualharassment, instruct employees to whom they can complain, assurethat the company will take prompt and appropriate action, promiseconfidentiality, and ensure that employees will not be penalizedor retaliated against for filing a complaint. In fact, Presleytestified at a deposition hearing that she knew she could reportallegations of sexual harassment to officials in the humanresource department.

The court will also examine the actions the company took inresponse to the complaintsPage 30that its employees reported. Id. at 295; Distacio v. PerkinElmer Corp., 157 F.3d 55, 64-65 (2d Cir. 1998).

The Second Circuit has held that a supervisor's failure tocomply with the company's reporting requirements is evidencetending to show that the company's response was inadequate. Id.at 65. In Distacio, the plaintiff informed her supervisor onseveral occasions that one of her co-workers was sexuallyharassing her. Id. at 59. The company's policy directedsupervisors who receive a harassment complaint to: "inform theHuman Resources Department of allegation of sexual harassment byemployees or non-employees within 24 hours or reporting of theincident, and assist, as requested, with investigation of suchallegations." Id. at 64. The supervisor refused to informcompany management of her allegations. Id. at 60. Consequently,the Second Circuit held that there was a genuine issue ofmaterial fact as whether the employer's response was reasonable.Id.

In the present case, there is a dispute between parties as towhether Presley told Donald Miller, a supervisor, about Arocho'salleged sexual harassment. On August 3, 2001, it is undisputedPresley spoke with Miller about Arocho. Presley contends that shetold Miller about Arocho's alleged sexual harassment.Specifically, Presley testified during a deposition to thefollowing: [Question] — And then on the 3rd when this thing happened with Mr. Arocho grabbing his genitals, did you tell anybody else on August 3rd about what happened? [Answer] — I didn't tell no one that day except Donald Miller what was going on. [Question] — And then you went back to him later in the day, did you tell him what Mr. Arocho had done on the 3rd? [Answer] — That's correct, yes.In contrast to Presley's contentions, Paul Macionus, PepperidgeFarm's human resourcesPage 31manager, testified during a deposition that when he interviewedMiller during the investigation, Miller stated that Presley toldhim only that she was "uncomfortable" around Arocho. Miller alsoallegedly told him that Presley did not specify what made heruncomfortable, nor did she make any allegations of sexualharassment.

Despite the dispute as to details of this conversation, it isundisputed that Miller told Presley to report any harassment tothe human resource department, and that Presley told Miller thatshe had handled the situation. It is also undisputed, however,that Miller did not report Presley's statements to human resourceofficials.

It is not clear from the facts before the court what Miller'sduty was if Presley did tell him about Arocho's alleged sexualharassment. Presley contends that Miller had an obligation toreport inappropriate conduct to the human resources department inaccordance with the company's anti-harassment policies.Pepperidge Farm's anti-harassment policies do state thatemployees can report allegations of harassment to a supervisor,but they do not state what a supervisor's duty is once he or shereceives a report.

Viewing the evidence in a light most favorable to Presley, thecourt holds that a reasonable juror could find that Presley didtell Miller about Arocho's sexual harassment, and that Miller, asa supervisor, had a duty to relay those allegations to the humanresource department. Following the Second Circuit's decision inDistacio, the court concludes that Miller's failure to complywith the company's reporting requirements is evidence tending toshow that the company's response was inadequate.

The prompt nature of Pepperidge Farm's investigation is also indispute. The following facts are not in dispute. On Friday,August 31, 2001, Diggs and White notified Macionus andPage 32Allende of Presley's sexual harassment allegations. On Tuesday,September 4, 2001, the first day back at the plant after theLabor Day holiday weekend, Macionus and Allende commenced aninvestigation of Presley's allegations. On September 4, 2001,Macionus and Allende interviewed Presley. The officials alsoremoved Presley from Arocho's day-to-day supervision during theinvestigation. On September 5, 2001, Macionus and Allendeinterviewed Arocho. During that week, Macionus and Allende alsointerviewed other witnesses that Presley identified, namely,Donald Miller, Juan Martinez, and Spencer Peeples. Based on theinformation from their investigation, Macionus and Allende wereunable to corroborate any of Presley's allegations and arrived atan inconclusive result. On Friday, September 7, 2001, Macionusand Allende reported the results of the investigation thus far toPresley. On September 24, 2001, Macionus and Allende met withPresley again to discuss the results of the investigation.

There is a dispute as to when Presley notified Macionus andAllende that two other employees, Tsharides and Giannakova, werepotential witnesses in her case. Presley has submitted atranscript of a tape recording of Allende, stating that Allendereceived a voice mail from Presley on September 5, 2001 whichnotified Allende of Tsharides and Giannakova. When confrontedwith the tape recording during a deposition hearing, however,Allende testified that Presley did not tell her about Tsharidesand Giannakova until September 25, 2001.

It is also unclear when Macionus and Allende interviewedTsharides and Giannakova. Allende gave deposition testimony thatshe interviewed both Tsharides and Giannakova on September 25,2001, the same day she claims that Presley notified her.Tsharides testified during her deposition that Macionus andAllende interviewed her in early September 2001.

It is undisputed, however, that when the officials didinterview Tsharides andPage 33Giannakova, they questioned them about Presley, and neitheremployee offered any information regarding Presley's allegations.Instead, both employees had their own allegations against Arochowhich the officials investigated and found to be unsubstantiated.

Viewing the evidence in a light most favorable to Presley, thecourt concludes that a reasonable juror could find that Presleynotified Allende about Tsharides and Giannakova on September 5,2001, and that Macionus and Allende did not interview them untilSeptember 25, 2001. Whether a twenty day delay in interviewingthese witnesses means that Pepperidge Farm's investigation was nolonger prompt is a question for the jury. In sum, the courtconcludes that Miller's failure to comply with the company'sreporting requirements and Pepperidge Farm officials' delayedinvestigation create a genuine issue of material fact as towhether Pepperidge Farm exercised reasonable care to prevent andcorrect promptly any sexually harassing behavior.

Presley and Preventive/Corrective Opportunities

Under the second prong of the affirmative defense, PepperidgeFarm must prove that Presley "unreasonably failed to takeadvantage of any preventive or corrective opportunities providedby [Pepperidge Farm] or to avoid harm other wise." Ellerth,524 U.S. at 765; Mack, 326 F.3d at 127-128.

In Mack, the plaintiff's supervisor, Connolly, was allegedlyharassing her at work. Id. at 120-121. The company'santi-harassment policy provided employees with several avenues tomake a complaint. Id. at 121. As one option, the policyinstructed employees to report any allegations of harassment to asupervisor, unless the supervisor was the alleged harasser. Id.The plaintiff testified at her deposition that she reportedConnolly's alleged harassment to Gallina, Connolly's supervisor,and that she asked Gallina to transfer her to another department.Id. atPage 34128. The plaintiff conceded that she knew there were otheravenues available for her to complain. Id. at 121. Even thoughshe did not take advantage of the other avenues that the companyprovided, the Second Circuit held there was "evidence in therecord from which a reasonable trier of fact could conclude that[the plaintiff] did not fail to take advantage of [the company's]harassment complaint procedures." Id. at 128 (internalquotations omitted).

In the present case, there is a dispute between the parties asto whether Presley told Donald Miller, a supervisor, aboutArocho's alleged sexual harassment. Presley contends that shetold Miller about Arocho's alleged sexual harassment.Specifically, Presley testified during a deposition to thefollowing: [Question] — And then on the 3rd when this thing happened with Mr. Arocho grabbing his genitals, did you tell anybody else on August 3rd about what happened? [Answer] — I didn't tell no one that day except Donald Miller what was going on. [Question] — And then you went back to him later in the day, did you tell him what Mr. Arocho had done on the 3rd? [Answer] — That's correct, yes.In contrast to Presley's contentions, Paul Macionus, PepperidgeFarm's human resources manager, testified during a depositionthat when he interviewed Miller during the investigation, Millerstated that Presley told him only that she was "uncomfortable"around Arocho. Miller also allegedly told him that Presley didnot specify what made her uncomfortable, nor did she make anyallegations of sexual harassment.

Viewing the evidence in a light most favorable to Presley, thecourt concludes that a reasonable juror could find that Presley,like the plaintiff in Mack, did tell a supervisor aboutArocho's sexual harassment. Additionally, it is undisputedPepperidge Farm's anti-harassment policies, like the policy inMack, instructed employees to report allegations of harassmentto aPage 35supervisor. Consequently, as was the case in Mack, there isevidence in the present case from which a reasonable trier offact could conclude that Presley did not fail to take advantageof Pepperidge Farm's harassment complaint procedures.

For all the above reasons, the court concludes that a genuineissue of material fact exists as to whether Pepperidge Farm isentitled to claim the affirmative defense.

2. Retaliation

Title VII provides that [i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [she] has opposed any practice made an unlawful employment practice . . . or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under Title VII.42 U.S.C. § 2000e-3(a), Title VII § 704(a). Retaliation claimsunder Title VII are analyzed under the McDonnell Douglasthree-step burden shifting analysis. Quinn v. Green Tree CreditCorp., 159 F.3d 759, 768 (2d Cir. 1998). "First, the plaintiffmust make out a prima facie case of retaliation." Id. "Second,the defendant then has the burden of articulating a legitimate,nonretaliatory reason for the complained of action." Id."Third, if the defendant meets its burden, [the] plaintiff mustadduce evidence sufficient to raise a fact issue as to whetherthe employer's reason was merely a pretext for retaliation."Id. (internal quotations omitted).

A. The Prima Facie Case

To establish a prima facie case of retaliation, an employeemust show: 1) participation in a protected activity known to thedefendant; 2) an adverse employment action; and 3) a causalconnection between the protected activity and the adverseemployment action. Id. at 769.

1. Adverse Employment ActionPage 36

Pepperidge Farm argues that Presley has failed to establish aprima facie claim of retaliation because she cannot prove thatPepperidge Farm took any adverse employment action against her.

Presley responds that Pepperidge Farm took adverse employmentaction against her when: 1) Arocho marked Presley tardy whenPresley contends that she was not late, and 2) Arocho requiredPresley to fill out a time sheet which accounted for herwhereabouts in the company plant at all times for one week.

The Second Circuit has defined "adverse employment action" as a"materially adverse change in the terms and conditions ofemployment." Weeks v. New York State (Div. of Parole),273 F.3d 76, 85 (2d Cir. 2001), abrogated on other grounds by Nat'lR.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108-114 (2002)."To be materially adverse, a change in working conditions must be`more disruptive than a mere inconvenience or an alteration ofjob responsibilities.'" Id. "Examples of such a change include`termination of employment, a demotion evidenced by a decrease inwage or salary, a less distinguished title, a material loss ofbenefits, significantly diminished material responsibilities, orother indices . . . unique to a particular situation.'" Id.

In Weeks, the plaintiff argued that a "notice of discipline"she received was an adverse employment action becausenon-minority, non-female officers did not receive such a noticeunder similar circumstances. Id. at 86. The Second Circuit heldthat the notice of discipline was not an adverse employmentaction because the plaintiff alleged "no facts from which onecould infer that it created a materially adverse change in herworking conditions." Id. The court noted that "she [did] notdescribe its effect or ramifications, how or why the effect wouldbe serious,Page 37whether it went into any file, or even whether it was inwriting."

Presley argues that Pepperidge Farm took adverse employmentaction against her when: 1) Arocho marked Presley tardy whenPresley contends that she was not late; and 2) Arocho requiredPresley to fill out a time sheet which accounted for herwhereabouts in the company plant at all times for one week. Likethe plaintiff in Weeks, Presley has not described the effect orramifications of either incident, how or why the effect would beserious, whether either incident was noted in her file, or evenwhether they were put in writing. Without this information, thecourt is unable to determine how marking her tardy and requiringher to fill out a time sheet for one week could cause an adversechange in her working conditions. In the absence of thisinformation, the court concludes that Presley's allegations donot qualify as adverse employment actions. As a result, Presley'sretaliation claim fails.

3. Gender Based Discrimination

Pepperidge Farm argues that the plaintiffs claim of genderdiscrimination is nothing more than a reiteration of theirhostile work environment claim, and that the court should grantsummary judgment on these claims for the same reasons as theirhostile work environment claim. The plaintiffs respond thatPepperidge Farm subjected them to "sex discrimination by virtueof a hostile work environment."

Title VII prohibits employers from "discriminat[ing] againstany individual with respect to [her] compensation, terms,conditions, or privileges of employment, because of suchindividual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). The SupremeCourt has held that the phrase "terms, conditions, or privilegesof employment" is broad enough to encompass the definition of ahostile work environment. Harris v. Forklift Systems,510 U.S. 17, 21 (1993). Consequently,Page 38to prove sex discrimination by virtue of a hostile workenvironment, the plaintiffs must show: 1) that the allegedconduct amounts to a hostile work environment; and 2) that thealleged conduct created such an environment because of their sex.Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001).

A. Tsharides's claim

Because the court has already held that a genuine issue ofmaterial fact does not exist with respect to Tsharides's hostilework environment claim, her claim of sexual discrimination byvirtue of a hostile work environment fails as a matter of law.

B. Presley's claim

Because the court has already held that a genuine issue ofmaterial fact does exist with respect to Presley's hostile workenvironment claim, the court will now analyze whether the allegedconduct created such an environment because of her sex.

"In determining whether an employee has been discriminatedagainst because of [her] . . . sex, courts have consistentlyemphasized that the ultimate issue is the reasons for theindividual plaintiff's treatment, not the relative treatment ofdifferent groups within the workplace." Brown v. Henderson,257 F.3d 246, 252 (2d Cir. 2001) (internal citations and quotationsomitted).

The Second Circuit "has found workplace situationsdiscriminatory under a hostile work environment theory where theconduct at issue, though lacking any sexual component or anyreference to the victim's sex, could, in context, reasonably beinterpreted as having been taken on the basis of the plaintiff'ssex." Gregory, 243 F.3d at 695. In Gregory, a femaleplaintiff, Gregory, alleged that her supervisor, Daly, subjectedher to a hostile work environment because of her sex. Id at689. In support of her claim, Gregory alleged that Daly made"demeaningPage 39comments of a sexual nature, engaged in behavioral displays of asexual nature, and made unwelcome physical contact . . . of asexual nature with Gregory." Id. at 690 (internal quotationsomitted). Gregory's claim also contained other allegations ofDaly's discrimination. Specifically, after Gregory complainedabout Daly's behavior, "Gregory's new supervisor, acting onDaly's instructions, imposed novel restrictions on her workactivities, including the requirement that she, unlike otheremployees, provide a `minute by minute' record of her movements."Id. Daly also allegedly "made hostile comments concerning thelawsuit Gregory had filed, started to threaten her job, andsubjected her to baseless disciplinary actions." Id. Thedefendant argued that the court "must exclude from consideration. . . Gregory's allegations that do not, on their face, containany connection to sexual behavior or to a person's sex." Id. at694. The court responded, holding that "the sex-based characterof much of Daly's behavior permits the inference that theremainder of his harassing conduct was also due to Gregory'ssex." Id. at 695. The court further held that "this remains soeven though the discriminatory character of some individualincidents might not be evident were they considered in isolationonly." Id. As a result, the court concluded that "[b]ecauseGregory's allegations support the notion that she was subjectedto abusive working conditions because of her sex, we vacate thedistrict court's judgment dismissing plaintiff's claim of hostilework environment discrimination." Id.

The court considered the following allegations in decidingPresley's hostile work environment claim. On August 2, 2001,Arocho told Presley that she had nice legs. Presley told Arochothat she was uncomfortable with that comment, and that she wouldpursue a complaint if this conduct persisted. Arocho responded bytelling Presley that she was not in good standing with thecompany because she had previously filed a worker's compensationclaim. On AugustPage 403, 2001, Arocho told Presley that her friendship with several ofthe men at the plant could bring her financial gain due to herattractive physical attributes. Later that same day, Arochosummoned Presley to his office, grabbed his crotch area, andasked Presley if she "wanted any of this." On August 15, 2001,Presley contends that Arocho warned her that fifty-three peoplecould complain to human resources about him and nothing wouldever happen to him. Later that same date, Arocho allegedlytouched Presley on her shoulder and smiled. On August 31, 2001,Presley learned from Diggs that Arocho sent a negativerecommendation to quality assurance while she was applying for aposition in the department. Presley alleges that the negativerecommendation was untrue and that it caused White to decline tohire her for the position. On December 7, 2001, Arocho markedPresley tardy when Presley contends that she was not late. Arochothen told Presley that, if she were marked tardy again, she wouldbe suspended from her employment. As a result, Arocho requiredPresley to fill out a time sheet which accounted for herwhereabouts in the company plant at all times for one week.

Several of Presley's allegations show that her sex played asubstantial role in Arocho's behavior. Specifically, a reasonablejuror could find that Arocho's comment that Presley's friendshipwith several of the men at the plant could bring her financialgain due to her attractive physical attributes insinuated thatPresley was a prostitute of some sort, which is a demeaningactivity primarily associated with women. Additionally, areasonable juror could also find that Arocho's action of grabbinghis crotch in front of Presley and asking her if she "wanted anyof this" is a behavioral display of a sexual nature or some typeof vulgar sexual offering. By making such a display or offering,a reasonable juror could find that Arocho has demonstrated asexual interest toward Presley as a woman. These inferences arealso supported by the SupremePage 41Court's observation that "[c]ourts and juries have found theinference of discrimination easy to draw in most male-femalesexual harassment situation, because the challenged conducttypically involves explicit or implicit proposals of sexualactivity; it is reasonable to assume those proposals would nothave been made to someone of the same sex." Oncale v. SundownerOffshore Services, Inc., 510 U.S. 75, 80 (1998) (discussingdifferent forms of evidence that can show sex discrimination).

The remainder of Arocho's conduct is factually similar to theremainder of Daly's conduct in Gregory v. Daly, 243 F.3d 687(2d Cir. 2001). For instance, both Daly and Arocho required theplaintiffs to fill out a time sheet accounting for theirwhereabouts at all times. Both Daly and Arocho subjected theplaintiffs to baseless disciplinary actions and threatened theirjobs. Because this factual similarity exists, it is no greatstretch for the court similarly to hold that the sex-basedcharacter of some of Arocho's conduct permits the inference thatthe remainder of his conduct was also due to Presley's sex.Consequently, the court concludes that a genuine issue ofmaterial fact exists as to whether Arocho's alleged conductcreated a hostile work environment because of her sex.

In sum, Presley has raised a genuine issue of material facts asto both elements of her gender discrimination claim, which are:1) that the alleged conduct amounts to a hostile workenvironment, and 2) that the alleged conduct created such anenvironment because of her sex.

C. Employer Liability

The court may not hold individual supervisory employees liableunder Title VII. Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2dCir. 1995), abrogated on other grounds by Burlington Indus.,Inc. v. Ellerth, 524 U.S. 724 (1998). "For liability to attach[under Title VII], thePage 42employer must also be responsible for the conduct at issue."Gregory, 243 F.3d at 692 fn.3. Pepperidge Farm's liability forArocho's alleged sexual discrimination is determined by the samestandards as their liability for a hostile work environment.Id. Furthermore, because Presley's claim of sexualdiscrimination is based on the same conduct as her hostile workenvironment claim, the court's earlier ruling as to PepperidgeFarm's vicarious liability applies here. Consequently, there aregenuine issues of material fact as to whether Pepperidge Farm isliable for Arocho's alleged sexual discrimination.

4. Negligent Misrepresentation

The defendants move for judgment as a matter of law on theplaintiffs' claim of negligent misrepresentation, arguing thatthe plaintiffs have failed to raise a genuine issue of materialfact with respect to two essential elements of that claim.Specifically, the defendants argue that the "[p]laintiffs cannot. . . adduce any evidence that Pepperidge Farm made any falsestatement with regard to the sexual harassment prevention policynor that they reasonably relied on any such statement."

The plaintiffs respond that Pepperidge Farm knew or should havereasonably known that some of the representations that they madein their company handbook or their anti-harassment policy werefalse. The plaintiffs further respond that they justifiablyrelied on those representations by working for the defendants andparticipating in the company's complaint procedures. Finally, theplaintiffs respond that the inadequacy of Pepperidge Farm'scomplaint procedures exposed them to further harassment byArocho.

The governing principles of negligent misrepresentation are setforth in § 552 of the Restatement Second of Torts (1979), whichstates:Page 43

One who, in the course of business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.Barry v. Posi-Seal Intern., Inc., 36 Conn. App. 1, 20 (1994)(alterations in original) (emphasis added).

In Barry, the plaintiff claimed that his employer, Posi-Seal,negligently misrepresented the terms and conditions of hisemployment. Id. at 3. Specifically, Posi-Seal distributed apersonnel policy manual to its employees describing companypolicy on disciplinary procedures. Id. at 4. It states that"[i]t is the policy of the [c]ompany that any employee whoviolates any of the rules or procedures of the [c]ompany shall besubject to disciplinary action as set forth below." Id. Themanual then sets forth procedures to respond to first, second andthird violations by employees of the company rules andregulations. Id. Additionally, on one occasion, the plaintiffasked Eugene Bisbee, the vice president and general manager ofPosi-Seal, about the plaintiff's job security. Id. Bisbeeresponded that "if you do your job, you do your work, you'regoing to have a job here. If we can make this place run andminimize the money loss — I mean, you do your job, you're goingto have a job here." Id. On August 4, 1988, the plaintiff madea disparaging remark about a company made valve in the presenceof a customer representative. Id. at 3. The next day, Posi-Sealterminated his employment because of the comment. Id. Posi-Sealdid not give the plaintiff prior notice of his termination anddid not afford him any other disciplinary measures in accordancewith their personnel manual. Id On appeal, the plaintiffcontended that the defendant failed to exercise reasonable careand thus supplied false information to the plaintiff which theplaintiff justifiably relied on to hisPage 44detriment." Id. at 21. The court rejected the plaintiff'sargument, stating that "the plaintiff . . . has failed to appriseus of anything in the record, and our search of the record hasrevealed nothing to support his contention. Id. The court heldthat there was no evidence from which the jury reasonably couldhave found that the defendant's representations were untrue whenmade or that the defendant should have known to be untrue whenmade. Id. As a result, the court affirmed the trial court'sdecision to grant the defendant's motion to set aside the verdictas to the plaintiff's negligent misrepresentation claim. Id.

In the present case, neither plaintiff has alleged any factsindicating that Pepperidge Farm failed to exercise reasonablecare or competence in obtaining or communicating any informationin their company handbook or anti-harassment policy.Specifically, like the plaintiff in Barry, neither plaintiffhas introduced any evidence from which a reasonable juror couldfind that Pepperidge Farm's representations in their companyhandbook or anti-harassment policy were untrue when they madethem or that they should have known they were untrue at thattime. Consequently, the court concludes that the claim ofnegligent misrepresentation fails as a matter of law.

5. Civil Conspiracy

The defendants argue that they are entitled to summary judgmenton the plaintiffs' claims of civil conspiracy. Specifically, thedefendants argue that "[a]n essential element of a civil actionfor conspiracy is that the alleged conspirators have combined `todo a criminal act or an unlawful act or a lawful act by criminalor unlawful means.'" The defendants further argue that theplaintiffs cannot raise a genuine issue of material fact that thedefendants have committed such an act. The plaintiffs respondthat their civil conspiracy claim is based upon their earlierPage 45claim of negligent misrepresentation.

"An essential element of a civil action for conspiracy is thatthe alleged conspirators have combined `to do a criminal act oran unlawful act or a lawful act by criminal or unlawful means."Jones v. O'Connell, 189 Conn. 648, 662 (1983).

In Jones, the court stated that "[t]he illegal act upon whichthe plaintiffs rely to establish a civil conspiracy are the veryacts which we have already found not to be improper." Id.Consequently, the court held that "[i]n the absence of anyindependent basis for this claim, our discussion of the merits ofthe underlying claims is dispositive of this claim as well."Id.

In the present case, the plaintiffs rely on their earlier claimof negligent misrepresentation to establish a civil conspiracy.Because the court has already granted summary judgment in favorof the defendants on the plaintiffs' underlying claim ofnegligent misrepresentation, the plaintiffs' claim of civilconspiracy also fails as a matter of law.

6. Intentional Infliction of Emotional Distress

The defendants argue that a genuine issue of material fact doesnot exist as to the plaintiff's claims of intentional inflictionof emotional distress against Arocho or Pepperidge Farm.Specifically, the defendants argue that the plaintiffs have notalleged that Arocho or Pepperidge Farm engaged in any conductthat a reasonable juror could find to be "extreme andoutrageous."

The plaintiffs respond that the question of whether the conductof Arocho or Pepperidge Farm was sufficiently extreme andoutrageous should be decided by a jury because, at this stage,reasonable minds could differ.

In order for the plaintiff to establish a claim of intentionalinfliction of emotional distress,Page 46the plaintiff must prove

1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; 2) that the conduct was extreme and outrageous; 3) that the defendant's conduct was the cause of the plaintiff's distress; and 4) that the emotional distress suffered by the plaintiff was severe.Appleton v. Bd. of Educ. of Town of Southington, 254 Conn. 205,210 (2000). "Whether a defendant's conduct is sufficient tosatisfy the requirement that it be extreme and outrageous isinitially a question for the court to determine." Id. "Onlywhere reasonable minds disagree does it become an issue for thejury." Id.

A. Extreme and Outrageous

"Liability for intentional infliction of emotional distressrequires conduct that exceeds all bounds usually tolerated bysociety. . . ." Id. (internal quotations omitted). Courts havefound liability "only where the conduct has been so outrageous incharacter, and so extreme in degree, as to go beyond all possiblebounds of decency, and to be regarded as atrocious, and utterlyintolerable in a civilized community." Id. at 211. "Generally,the case is one in which the recitation of facts to an averagemember of the community would arose his resentment against theactor, and lead him to exclaim, `Outrageous!.'" Id. (quotingthe Restatement (Second), Torts § 46, comment (d), p. 73 (1965))."Conduct on the part of the defendant that is merely insulting ordisplays bad manners or results in hurt feelings is insufficientto form the basis for an action based upon intentional inflictionof emotional distress." Id.; Kilduff v. Cosential, Inc.,289 F.Supp.2d 12, 21 (D. Conn. 2003).

In Appleton v. Bd. of Educ. of Town of Southington,254 Conn. 205 (2000), the plaintiff, a teacher, claimed that the principal,assistant principal, and board of educationPage 47intentionally inflicted emotional distress on her. Id.Specifically, Appleton complained that the principal "madecondescending comments to her in front of her fellow colleaguesquestioning her vision and ability read; telephoned theplaintiff's daughter, representing that the plaintiff had beenacting differently and should take a few days off from work; andtelephoned the police, who came to the school and escorted theplaintiff out of the building to her car." Id. at 211 (internalquotations omitted). "The plaintiff also asserted in heraffidavit that she was subjected to two psychiatric examinationsat the request of the board, and that she was forced to take asuspension and a leave of absence and, ultimately, forced toresign." Id. The court held that while these occurrences mayhave been distressing and hurtful to the plaintiff, they did notconstitute extreme and outrageous conduct. Id. As a result, thecourt held that the defendants' conduct was insufficient to formthe basis of an action for intentional infliction of emotionaldistress. Id. at 212.

Further, in Kilduff v. Cosential, Inc., 289 F.Supp.2d 12 (D.Conn. 2003), the plaintiff alleged that her supervisor usedsexual analogies to describe her employment duties for theduration of her employment, which lasted five months, subjectedher to sexist language over an extended period of time, engagedin inappropriate touching. Id. at 22. The plaintiff alsoalleged that her supervisors harassing conduct increased inintensity in retaliation for her complaining of his conduct.Id. Finally, the plaintiff alleged that her supervisorthreatened to fire her if she cut her hair. Id. The court heldthat her supervisor's conduct was "sufficiently objectionablethat the response of reasonable people may differ thus precludingdismissal of [this claim]." Id. The court stated that theretaliatory nature of the supervisor's conduct was entitled tosome weight. Id.

a. Presley's Claim Against ArochoPage 48

Presley's claim of intentional infliction of emotional distressagainst Arocho includes the following allegations. On August 2,2001, Arocho told Presley that she had nice legs. Presley toldArocho that she was uncomfortable with that comment, and that shewould pursue a complaint if this conduct persisted. Arochoresponded by telling Presley that she was not in good standingwith the company because she had previously filed a worker'scompensation claim. On August 3, 2001, Arocho told Presley thather friendship with several of the men at the plant could bringher financial gain due to her attractive physical attributes.Presley felt this statement insinuated that she was a prostituteof some sort. Later that same day, Arocho summoned Presley to hisoffice, grabbed his crotch area, and asked Presley if she "wantedany of this." On August 15, 2001, Arocho warned her thatfifty-three people could complain to human resources about himand nothing would ever happen to him. On December 7, 2001, Arochomarked Presley tardy when Presley contends that she was not late.Arocho then told Presley that if she were marked tardy again, shewould be suspended from her employment. As a result, Arochorequired Presley to fill out a time sheet which accounted for herwhereabouts in the company plant at all times for one week.Presley also alleges that Arocho sent a negative recommendationto the quality assurance department that caused White to declineto hire her for the position.

Accepting Presley's allegations as true, they are not moreextreme and outrageous than the plaintiff's allegations inAppleton. While the principal in Appleton made condescendingremarks towards Appleton, Arocho made comments that wereinsulting and intimidating. The principal's comments inAppleton were more outrageous than Arocho's comments, however,because he made them in front of several of the Appleton'scolleagues while Arocho said them only to Presley. Insulting anemployee in front of her colleagues is more outrageous because itPage 49could pervade the employee's entire working environment and ruinthe employee's credibility and reputation.

Additionally, while Arocho marked Presley tardy and requiredher to fill out a time sheet, Appleton's employer forced her totake two psychiatric examinations. Forcing an employee to submitto two psychiatric examinations is more extreme than marking themtardy or requiring them to fill out a time sheet because it ismuch more burdensome and objectionable for an employee.

Furthermore, Arocho's negative recommendation is not moreoutrageous than the school official's actions of calling thepolice to escort Appleton out of the building and callingAppleton's daughter to tell her that Appleton was behavingdifferently and needed to stay home. While Presley may have losta promotion as a result of Arocho's negative recommendation,being escorted away from your job by the police is extremelyembarrassing and involving someone's close family members isextremely violative. Cf. Bombalacki v. Pastore,71 Conn. App. 835, 841-841 (2002) (holding that a police chief's action offailing to recommend the plaintiff for a promotion that hedeserved was not extreme and outrageous). Finally, Arocho onlythreatened to suspend Presley, while Appleton's employer didsuspend her and forced her to take a leave of absence.

Because Presley's allegations are not more extreme andoutrageous than the plaintiff's allegations in Appleton, wherethe court granted summary judgment against the plaintiff,Presley's claim of intentional infliction of emotional distressagainst Arocho also fails as a matter of law.

b. Tsharides's claim against ArochoPage 50

Tsharides's claim of intentional infliction of emotionaldistress against Arocho includes the following allegations. In orabout the end of July 2001, Arocho rubbed Tsharides hands andtold her that she "made him nervous." Proximate to this timeperiod, Arocho attempted to touch her knees and told her that hehad the authority to do so because he was her supervisor. Inearly August 2001, Arocho approached Tsharides from behind,rubbed his foot against her calf, and uttered unintelligiblecomments. In August 2001, Arocho asked Tsharides if she wanted"to mess around" with him. Finally, in late August 2001, Arochoapproached Tsharides and told her that he wanted to have a"threesome" with her and one of her co-workers.

Tsharides's allegations are far less severe than theplaintiff's allegations in Kilduff. First, unlike theplaintiff's supervisor in Kilduff, Arocho never threatened tofire Tsharides. Second, any inappropriate or sexual comments inthe present case occurred far less frequently and over a shorterperiod of time than in Kilduff. Specifically, in Kilduff, theplaintiff alleged that her supervisor made sexual comments to herfor the duration of employment which lasted five months. Byconstrast, Tsharides worked at Pepperidge Farm for almost fouryears and alleges that, during that time, Arocho made only threesexual comments to her over a period of one month. Third, whilethe supervisor's harassment in Kilduff intensified inretaliation for the plaintiff complaining about his conduct,Tsharides testified at deposition that Arocho's inappropriateconduct ceased even before Tsharides participated in PepperidgeFarm's complaint procedure. Because the court in Kilduffindicated that it would give some weight on the retaliatorynature the supervisor's conduct in making its decision, thiscourt will also weight the lack any retaliation in the presentcase. Consequently, because Tsharides's allegations are far lesssevere than the plaintiff's allegations in Kilduff, Tsharides'sclaim of intentional infliction ofPage 51emotional distress against Arocho fails as a matter of law.

B. Both Plaintiffs claims against Arocho

In Morrissey v. Yale University, 268 Conn. 426, 427-428(2004) the plaintiff alleged that her employer intentionallyinflicted emotional distress on her by failing to take any actionin response to the plaintiff's complaints of harassment. Inresponse, the Connecticut Supreme Court held that "no reasonablejury could conclude that an average member of the community wouldfind the defendant's conduct to have been extreme andoutrageous." Id. at 428; accord Pascal v. Storage TechnologyCorp., 152 F.Supp.2d 191, 214 (D. Conn. 2001) (holding that anemployer's failure to adequately protect the plaintiff from anarguably hostile work environment was not extreme andoutrageous); Miner v. Town of Chesire, 126 F.Supp.2d 184, 195(D. Conn. 2000) (holding that an employer's refusal to protectthe plaintiff from sexual harassment was not sufficiently extremeor outrageous to state a claim for intentional infliction ofemotional distress); Dobrich v. General Dynamics Corp., Elec.Boat Div., 40 F.Supp.2d 90, 105 (D. Conn. 1999) (holding that anemployer's negligent failure to prevent sexual harassment offemale employee was not extreme and outrageous).

In the present case, both plaintiffs claim that Pepperidge Farmintentionally inflicted emotional harm on them by providing aninadequate response to the plaintiffs' allegations of sexualharassment. Even accepting the plaintiffs' allegations as true,the court concludes that after Morrissey, Pascal, Miner,and Dobrich, no reasonably jury could conclude that anemployer's inadequate response to an employees's allegations ofsexual harassment, even it was negligent, is extreme andoutrageous. Consequently, the plaintiffs' claims of intentionalinfliction of emotional distress against Pepperidge Farm fails asa matter of law.Page 52

7. Negligent Infliction of Emotional Distress

The defendants next argue that the plaintiffs have failed toraise a genuine issue of material fact on the claim of negligentinfliction of emotional distress. Specifically, the defendantsargue that the plaintiffs have failed to alleged any unreasonableconduct of the defendant that occurred during their resignationprocesses.

The plaintiffs do not offer any response.

To establish a claim of negligent infliction of emotionaldistress, "the plaintiff must prove that the defendant shouldhave realized that its conduct involved an unreasonable risk ofcausing emotional distress and that the distress, if it werecaused, might result in illness or bodily harm." Carrol v.Allstate Ins. Co., 262 Conn. 433, 446 (2003). The ConnecticutSupreme Court has held, however, that "an individual . . .employee may not be found liable for negligent infliction ofemotional distress arising out conduct occurring within acontinuing employment context, as distinguished from conductoccurring in the termination of employment." Perodeau v. City ofHartford, 259 Conn. 729, 763 (2002). Although Perodeauconcerned the liability of an individual defendant, the courtshave repeatedly held that the reasoning applies equally tocorporate defendants. See Brunson v. Bayer Corp.,237 F.Supp.2d 192, 208 (D. Conn. 2002) (citing cases). Courts havealso held that allegations of constructive discharge may qualifyas termination under Perodeau. Pecoraro v. New HavenRegister, 344 F.Supp.2d 840, 846 (D. Conn. 2004); Grey v. Cityof Norwalk Bd. of Ed., 304 F.Supp.2d 314, 332 (D. Conn. 2004).In a case of constructive discharge, courts will consider onlythe incidents which occurred during the plaintiff's resignationprocess or thereafter in evaluating a negligent infliction ofemotional distress claim. Pecoraro, 344 F.Supp.2d at 846-847.Page 53

In the present case, it is undisputed that Pepperidge Farm didnot terminate either plaintiff's employment. To the extent thateither plaintiff claims constructive discharge, the court willconsider only allegations of inappropriate conduct by Arocho orPepperidge Farm which occurred during the plaintiffs' resignationprocesses or thereafter.

Tsharides's claim

It is undisputed that neither Arocho nor Pepperidge Farmengaged in any inappropriate conduct during Tsharides'sresignation process or thereafter. Specifically, in March 2003,Tsharides resigned from her employment, and she has made noallegations of inappropriate conduct by either defendantoccurring during that process or thereafter. In fact, Tsharidestestified in a deposition hearing that any alleged inappropriateconduct by the defendants had stopped in 2001. Consequently,because the defendants did not engage in any inappropriateconduct during Tsharides's resignation process or thereafter,Tsharides's claim of negligent infliction of emotional distressfails as a matter of law.

Presley's claim

It is also undisputed that neither defendant engaged in anyinappropriate conduct during Presley's resignation process orthereafter. At some point in March 2002, Presley resigned.Presley does not allege that either defendant engaged in anyinappropriate conduct during her resignation or thereafter.Earlier that same month, Presley does allege, however, that shereceived information that Arocho's wife, who was also an employeeat the plant, was making physical threats towards her forpursuing a sexual harassment complaint. Even if the court were tostrain in order to consider this incident in deciding Presley'sclaim, any allegation that Pepperidge Farm failed to takeadequate remedial measures is insufficient, as a matter of law,toPage 54state a claim of negligent infliction of emotional distress.See Miner v. Town of Chesire, 126 F.Supp.2d 184, 199 (D.Conn. 2000) (holding that the plaintiff's allegations did notrise to the required level of unreasonableness to state a claimof negligent infliction of emotional distress where the "employerwas well aware of [the] harassment, but failed to take adequateremedial measures or provide adequate training; and failed toprovide an appropriate mechanism for the reporting incidents ofsexual harassment in the workplace.") All other allegations byPresley took place in 2001, which are far too remote in time fromPresley's resignation for the court to consider. Consequently,because it is undisputed that neither defendant engaged in anyinappropriate conduct during Presley's resignation process orthereafter, Presley's claim of negligent infliction of emotionaldistress fails as a matter of law.

CONCLUSION

For the foregoing reasons, the defendants' motion for summaryjudgment is granted in part and denied in part.

It is so ordered.

1. The court will not consider this incident in its analysisbecause Presley admits that, at the time, she did notsubjectively perceive this incident to be offensive. SeeMormol v. Costco Wholesale Corp., 364 F.3d 54, 58 (2d Cir.2004) (stating that a plaintiff must subjectively perceive theconduct as hostile in order to prove a hostile work environmentclaim).

2. The court will not consider this incident in its analysisbecause Presley has not introduced any facts from which areasonable juror could infer that these threats were made becauseof Presley's gender. See Alfano v. Costello, 294 F.3d 365,374 (2d Cir. 2002) (stating that "it is `axiomatic' that in orderto establish a sex-based hostile work environment under TitleVII, a plaintiff must demonstrate that the conduct occurredbecause of her sex.").

3. Accepting Presley's allegations as true, the courtconcludes that Pepperidge Farm, through its actions, demonstrateda greater interest in retaining Presley as an employee, thanGrable demonstrated towards the plaintiffs in Whidbee.Specifically, Macionus and Allende conducted an investigation,removed Presley from Arocho's day-to-day supervision during theinvestigation, and later provided her with a transfer to anotherdepartment when she requested one, while the employer inWhidbee took no such actions. Whidbee v. Garzarelli FoodSpecialties, Inc., 223 F.3d 62, 74 (2000).