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RYCZEK v. GUEST SERVS.

February 24, 1995

FRANCINE RYCZEK, Plaintiff,
v.
GUEST SERVICES, INC., et al., Defendants.



The opinion of the court was delivered by: THOMAS F. HOGAN

 Pending before Court are the defendants' motions for summary judgment, as well as the supplemental motion for summary judgment of defendants Guest Services, Inc. ("Guest Services"), Harry Hanson, and Holly Burke. *fn1" After carefully reviewing all of the parties' submissions and hearing oral argument on these motions on February 10, 1995, the Court finds that the defendants are entitled to summary judgment.

 I. BACKGROUND

 In the fall of 1992, the plaintiff was a student at Johnson & Wales University in Providence, Rhode Island. She was pursuing a two-year degree in culinary arts. As part of the academic program at Johnson & Wales, the plaintiff was selected to participate in the Cooperative Education Experience ("CEE") program. Students in the CEE program receive wages and academic credits while working in the culinary arts. While participating in the CEE program, the plaintiff worked for defendant Guest Services in the District of Columbia.

 The plaintiff began working for Guest Services on December 1, 1992. On December 3, she began working at the Air and Space Museum. She was selected to work with defendant Chef Catherine O'Brien. The plaintiff claims that defendant O'Brien sexually harassed her. Specifically, the plaintiff claims, inter alia, that O'Brien told the plaintiff about her sexual preference for females inquired about the plaintiff's sexual practices, and made other inappropriate comments; that O'Brien dipped the plaintiff's finger into a pot of sauce and licked the finger; that O'Brien looked at the plaintiff suggestively and leaned against her; and that O'Brien removed her shirt when she was riding with the plaintiff in an elevator.

 In late December, the plaintiff asked for, and received, a transfer to another location, the Foreign Service Club. She did not tell anyone why she had requested the transfer. The plaintiff claims that she had no problems at the new location. However, in January of 1993, she claims that she was told that she would be assigned to work at the Air and Space Museum again. Apparently concerned about the possibility of working with O'Brien again, on February 1, 1993, the plaintiff complained about O'Brien's conduct to defendant Holly Burke, Guest Services' Director of Human Resources, and defendant Harry Hanson Guest Services' Director of Training and Liaison to the CEE program. Guest Services immediately began conducting an investigation into the plaintiff's sexual harassment charges. Hanson and Burke interviewed O'Brien and other individuals and also interviewed the plaintiff twice. After the plaintiff was interviewed but before the investigation had ended, the plaintiff called the University and requested permission to return to school. Shortly thereafter, she left Guest Services and the District of Columbia.

 After the plaintiff left Guest Services, Guest Services completed its investigation. The investigation uncovered no evidence to support the sexual harassment charges against O'Brien, but did find evidence that O'Brien had used vulgar language. The corporation had a counselling session for O'Brien and placed a memo in her file about the incident.

 The plaintiff received a failing grade on one project because she left the CEE program early and left her notes in the District of Columbia. Despite the failing grade, her overall grade for the course was a "B." The plaintiff claims that as a result of her experiences working for Guest Services, she needed to obtain counselling and missed several months of school and work. She also claims that the incidents robbed her of her love of cooking.

 The plaintiff has filed a seven-count complaint, in which she claims that (1) Guest Services violated Title VII's prohibition against sexual harassment; (2) Guest Services breached its contract with the plaintiff and constructively discharged her; (3) Guest Services breached a covenant of good faith and fair dealing with the plaintiff; (4) defendants O'Brien, Hanson, and Burke tortiously interfered with the contract between the plaintiff and Guest Services; (5) all defendants intentionally inflicted emotional distress upon the plaintiff; (6) all defendants negligently inflicted emotional distress upon the plaintiff; and (7) Guest Services negligently supervised its employees. The plaintiff seeks several million dollars in damages.

 II. DISCUSSION

 The defendants have moved for summary judgment under Fed. R. Civ. P. 56 on all counts. In order for the Court to grant summary judgment under Rule 56, the moving parties must demonstrate that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In considering the summary judgment issue, the Court must view all of the evidence in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). A careful analysis of the record in this case demonstrates that the defendants are entitled to summary judgment.

 A. Title VII Count

 Defendant Guest Services argues that the Court should grant summary judgment on the Tide VII count because (1) the plaintiff failed to file this suit within 90 days of the issuance of a right to sue letter by the Equal Employment Opportunity Commission ("EEOC"); (2) Guest Services' timely remedial action relieves it of liability; (3) the plaintiff's allegations of quid pro quo harassment are legally insufficient; and (4) there is no cause of action under Title VII for sexual harassment involving members of the same gender.

 1. Timeliness of this Suit

 The plaintiff filed a complaint with the EEOC in April of 1993. In her complaint, she provided the EEOC with an address in Yorkville, New York - her permanent address. In July of 1993, the plaintiff's attorney sent a letter to the EEOC indicating that she represented the plaintiff and requesting that all correspondence sent to the plaintiff also be sent to the attorney. When the EEOC did not complete a timely review of the plaintiff's complaint, the plaintiff's attorney requested that the EEOC issue a right to sue letter. The EEOC issued a right to sue letter on August 30, 1993. The letter was sent to an address in Riverside, Rhode Island, where the plaintiff had briefly resided while in school. A copy of the letter was not sent to the plaintiff's attorney. The plaintiff never received the right to sue letter.

 On February 15, 1994, the plaintiff's attorney sent a second letter to the EEOC requesting a right to sue letter. On February 24, 1994, the EEOC reissued the right to sue letter. Additionally, Susan Buckingham Reilly, the Director of the EEOC's Washington, D.C. Field Office indicated that the original letter had been returned unclaimed and that the EEOC had inadvertently failed to mail a copy of the right to sue letter to the plaintiff's attorney. The plaintiff filed this action within 90 days after receiving this second right to sue letter.

 Defendant Guest Services argues that this suit is untimely because it should have been filed within 90 days of the first notice. Ordinarily, a Title VII suit must be flied within 90 days after receipt of a right to sue notice from the EEOC. 42 U.S.C. ยง 2000e-5(f)(1). However, this 90 day period is like a statute of limitations and subject to equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). The plaintiff asserts that the EEOC erred by failing to send a copy of the right to sue letter to the plaintiff's counsel. The plaintiff attaches a sworn declaration from Reilly, the Director of the EEOC's field office. Pl.'s Opp'n to Defs.' Mot. for Summ. J. Ex. 25. The declaration indicates that the EEOC erred by failing to send a copy of the first right to sue letter to the plaintiff's counsel. The declaration also indicates that although an EEOC official, Eric Cohan, obtained the Rhode Island address from the plaintiff or counsel during the investigation, Cohan recalls that he was never asked to send the right to sue notice to the Rhode Island address. The declaration concludes by saying that "Ms. Ryczek was not at all negligent and deserves her day in court." Id.

 When a plaintiff can demonstrate that she failed to receive the right to sue letter because of "fortuitous circumstances," "events beyond [her] control" or "no fault" of her own, the limitations period may be tolled. Lewis v. Conners Steel Co., 673 F.2d 1240, 1243 (11th Cir. 1982) (quoting Franks v. Bowman Transp. Co., 495 F.2d 398, 404-05 (5th Cir. 1974), rev'd on other grounds, 424 U.S. 747, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976)). Here, the plaintiff has provided the Reilly declaration which strongly suggests that the failure to receive the letter was the EEOC's fault, not the plaintiff's. The Court finds that this declaration is adequate to justify equitable tolling in this case. Therefore, the Court will not dismiss this case on timeliness grounds.

 2. Remedial Action of Guest Services

 Defendant Guest Services next argues that its prompt remedial action relieved it of any liability for the alleged hostile environment sexual harassment. In order for a hostile work environment to exist for the purposes of a Tide VII sexual harassment case, the challenged conduct must "have the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). Even when such an environment exists, an employer is not necessarily liable. ...


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