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DAMATO v. JACK PHELAN CHEVROLET GEO

May 17, 1996

NICOLE DAMATO, Plaintiff,
v.
JACK PHELAN CHEVROLET GEO, INC., and ROBERT FRITH, EMPLOYEE AND AGENT, Defendants.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Defendants' Motion for Summary Judgment on various counts of Plaintiff's Amended Complaint. For the following reasons, the motion is granted in part and denied in part.

 I. Background *fn1"

 Nicole Damato ("Damato") worked for Defendant Jack Phelan Chevrolet Geo ("dealership") for approximately three months in 1994. Following her alleged constructive discharge from the dealership, she filed the instant Amended Complaint ("Complaint") against the dealership and Robert Frith ("Frith"), her former immediate supervisor. The Complaint contained the following allegations: sexual harassment, national origin discrimination, and retaliation against the dealership only (Counts I, II and III respectively); and battery and hate crime against both defendants (Counts IV and V). Defendants now move for partial summary with respect to Counts III, IV, and V of the Complaint.

 John Phelan ("Phelan") owns one-hundred percent of the dealership's stock. Phelan and his wife are the only two officers and directors of the dealership. Phelan functions as the general manager of the dealership and is closely involved with its operation.

 Frith was one such manager, in charge of operations and staff in the service department. Frith had worked for the dealership since the 1980s. Some of his duties included supervising employees in the department, overseeing department work flow, ensuring efficiency, and "troubleshooting" problems as they arose.

 Like other managers, Frith possessed the authority to hire employees for his department, as well as the authority to discipline or terminate those employees for serious misconduct. If the misconduct was not "serious," Frith had the authority to investigate the conduct and make a recommendation to Phelan as to the appropriate discipline.

 Phelan contends that Frith did not have authority to set policy or make management decisions. Damato, in her affidavit, disagrees to the extent that Frith, as a manager, set internal rules under which his department operated. Damato contends that Frith both hired and fired her.

 Phelan's affidavit states that he alone has exclusive authority over the dealership's labor relations. For example, Phelan states that he entered collective bargaining agreements and set personnel policies. Nothing in the submissions indicates that collective bargaining provisions apply to Damato. With input from the managers, Phelan also determined staffing needs. Phelan delegated authority to the managers to discipline and discharge employees for serious misconduct. Examples of such misconduct include property damage, fighting, and insubordination. For other cases of misconduct, the managers consulted with Phelan, the "final authority" on discipline, both before and including the time of discharge. For example, states Phelan, Phelan determines whether sexual harassment complaints are well-founded and the appropriate discipline for any such harassment. However, there is no evidence of a written corporate plan or policy regarding sexual harassment.

 Damato alleges that, in September 1994, Frith contacted Damato, inviting her to apply for an open cashier position at the dealership. Frith became acquainted with Damato through her work with a company with which the dealership contracted. Damato applied and was promptly hired by Frith. The prior relationship is not extensively developed in the submissions.

 During her work as a cashier, which involved receiving payments from service department customers, Damato spoke with Frith approximately ten times per day. Most of their conversations occurred in Frith's private office, in Damato's office at her desk, or on the telephone. Damato's office was a short distance from Frith's.

 Damato states that Frith's misconduct began during Damato's interview, when Frith complemented her for "looking good" and having "nice legs." The record does not disclose what Damato said in response. However, she took the cashier's job. Damato alleges that, after a few weeks on the job, Frith sought familiarity with Damato by commending her for her "nice butt," "nice breasts" and "nice ass." Damato states that Frith later referred to her as "Honey," "Sweetie," "Sweetheart," or "Babe" in virtually every conversation. Damato says that she continually rebuffed Frith's comments and requested that he call her by her name. She did not complain to Phelan.

 Further, Damato alleges that Frith's attention began to include unwelcome physical conduct. She states that he placed his hands on her shoulders, waist, and buttocks. Also, Damato says, there were occasions when Frith would back into Damato, pinning her against a wall and rubbing his body sensually against her. She did not complain to Phelan.

 In October 1994, while Damato was standing on a chair hanging Halloween decorations, Damato says that Frith surprised her from behind and began rubbing her legs. When she objected, Damato continues, Frith laughed. Still, she did not complain to Phelan.

 Damato says that Frith's sexual harassment was mixed with offensive name-calling of Damato, who is of Italian descent. She states that he would call her "Dago" and "Wop," describing that all Italians as "thieves or mobsters." How the name-calling would advance any of Frith's perceived sexual intentions is not clear in the submissions.

 Damato states that, on numerous occasions, she complained to Frith about his unwelcome conduct. Damato states that, in response, Frith laughed and continued the offensive behavior. Damato says that when she threatened to report Frith to Phelan, Frith's only supervisor, Frith stated that he would have her fired if she did. Despite Frith's persistence, Damato says that she refused to acquiesce.

 Damato did not report Frith's sexually harassing behavior to Phelan or anyone else at the dealership except Frith. She states that she feared retaliation by Frith, and that she needed her job to support her child. In her affidavit, Damato states that she did, however, make repeated complaints of ...


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