OPINION ORDER

BARBARA S. JONES, United States District Judge.

Plaintiff, Natasha King ("King"), a former waitress and part-time assistant manager of Friend of a Farmer restaurant ("FOAF") in Manhattan, brings this employment discrimination action against Defendants pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq. and the New York City Human Rights Law, N.Y.C. Admin Code §§ 8-101 et seq. In addition, Plaintiff brings a claim for violation of the Fair Labor Standards Act, 29 U.S.C. § 203 (m), and the New York Labor Law, § 196-d. Plaintiff also brings pendent state law claims for constructive discharge and intentional infliction of emotional distress.

In particular, Plaintiff alleges that the defendants:

(a) subjected her to quid pro quo sexual harassment;

(b) required her to work in a hostile work environment due to her gender;

(c) created an intolerable work atmosphere that resulted in her constructive discharge;

(d) intentionally caused her emotional distress; and

(e) unlawfully retained a portion of the waitresses' mandatory tip pool for the benefit of the restaurant.

Currently before this Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, Defendants' motion is granted in part and denied in part.

SUMMARY JUDGMENT STANDARD

Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). Nonetheless, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, (1986).

FACTS

The following facts are undisputed or taken in a light most favorable to King as the non-moving party. See Matsushita, 475 U.S. at 587. Defendants Terry and Carrie Morabito are co-owners of FOAF in Manhattan. King worked as a waitress and part-time assistant manager at FOAF from August 1994 to February 21, 1996. Throughout her employment, King was supervised by Yvonne Fallon, the assistant manager, and Phyllis Gerard ("Gerard"), the general manager. See Am. Cmplt., ¶¶ 15-20. Terry and Carrie Morabito regularly spoke with Gerard about matters pertaining to the restaurant, although communication with Terry was more frequent than with Carrie. See Gerard Depo. at 33; Terry Morabito Depo. at 60.

About one month after King began work at FOAF, Julio Heras ("Heras"), a cook at the restaurant, began a pattern of sexual harassment directed at King. Heras's harassment of King included asking her out on dates, directing sexual comments toward her, raising knives at her and other waitresses when they entered the kitchen, touching her on the waist and upper torso, questioning her boyfriend's sexual performance, and calling her sexual names such as "Sasha cara pistola" and "Sasha cara kimba," Spanish for "face of a penis" and "face of a cunt." King was also the victim of harassment by Heras's brother, Raymond Heras, another cook at the restaurant. See King Depo. at 116-124, 228, 285-286, 398; King Decl., ¶¶ 18-24.

King regularly reported the sexual harassment to Gerard, but Gerard responded by saying that this was simply the behavior of Mexican men and that King would be fired if she informed the Morabitos of Heras's behavior. Gerard told King that the Morabitos' policy in regard to confrontations between cooks and waitresses was that waitresses were "a dime a dozen" and cooks were "irreplaceable;" therefore, Gerard was instructed to always take the side of the cooks. Id. at 74-75, 231-232, 244-245; King Decl. ¶¶ 8, 25-26, 31. Gerard also told King that the Morabitos were aware of the harassment, but "didn't think it was worth doing anything about." In particular, King overheard Gerard inform Terry Morabito about the harassment, but he reacted with "complete indifference." King Decl. ¶¶ 35-36.

Additionally, on numerous occasions, King observed Gerard take money from the waitresses' mandatory tip pool in order to balance the cash register. Gerald told King that this behavior "was condoned by the Morabitos. See id. at ¶¶ 43-44.

The combination, of these claims forced King to end her employment at Friend of a Farmer on February 21, 1996.

DISCUSSION

I. Sexual Harassment Claims

Sexual harassment cases can proceed under two separate theories: quid pro quo, which involves the exchange of sexual favors for favorable treatment by an employer; and hostile work environment. See Gallagher v. Delany 139 F.3d 338, 346 (2d Cir. 1998)

A. Quid Pro Quo Sexual Harassment

Plaintiff's first cause of action is one of quid pro quo sexual harassment and is made against Defendants FOAF and Terry and Carrie Morabito, individually. Quid pro quo sexual harassment is used to describe situations in which tangible employment benefits are withheld from an employee who refuses to submit to sexual demands. Id. at 346 (citing Karibian v. Columbia Univ. 14 F.3d 773, 777 (2d Cir. 1994),cert. denied, 512 U.S. 1213 (1994)). In this case, Plaintiff is not alleging that her employer took any action to harm her employment status due to her refusal to submit to sexual requests; rather, she argues that she was constantly threatened with termination of her employment if she were to report the cooks' behavior to the Morabitos.

The question presented in this case is similar to the question inBurlinqton Industries, Inc. v. Ellerth, 524 U.S. 742, 753 (1998) "Whether a claim of quid pro quo sexual harassment may be stated under Title VII . . . where the plaintiff employee has neither submitted to the sexual advances of the alleged harasser nor suffered any tangible effects on the compensation, terms, conditions or privileges of employment as a consequence of a refusal to submit to those advances?" In Burlington, the Supreme Court answered this question by examining whether or not the employer's threats of retaliation were ever actually realized. See id. If the threats are never carried out, as is the case here, the Court ruled that the plaintiff may only claim a hostile work environment and notquid pro quo harassment. See id. Accordingly, since King's employment status was never actually affected by her supervisor's threats, she may not claim quid pro quo harassment and Defendants' motion for summary judgment on that claim is granted.

B. Hostile Work Environment

Although Plaintiff may not claim quid pro quo harassment this Court finds that she may proceed under the second theory of sexual harassment, hostile work environment. Plaintiff brings this claim against FOAF, Terry and Carrie Morabito, and Julio Heras. "For [hostile workplace] harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982). Because it is a question of fact whether the harassment was "severe and pervasive," this issue must be left to the jury. See Beardsley v. Webb, 30 F.3d 524, 539 (4th Cir. 1994). Accordingly, Defendants' motion for summary judgment is denied.

II. Constructive Discharge

Plaintiff's next claim is one of constructive discharge and is brought against Friend of a Farmer and Terry and Carrie Morabito. "Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily." Chertkova v. Connecticut General Life Insurance Co., 92 F.3d 81, 89 (2d Cir. 1996);see Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) In order to find constructive discharge, a court muse examine whether "the employee resign[ed] because an employer cause[d] to exist conditions of such an unpleasant or difficult nature that any reasonable person in the employee's place would do the same." Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir. 2000); see Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 161 (2d Cir. 1998). Reviewing the evidence in the light most favorable to Plaintiff, a reasonable trier of fact could find that Plaintiff was constructively discharged. See Chertkova 92 F.3d at 90. Defendants' motion for summary judgment on the constructive discharge claim is therefore denied.

III. Intentional Infliction of Emotional Distress

Plaintiff's fourth cause of action, intentional infliction of emotional distress, brought against FOAF, Terry and Carrie Morabito, and Julio Heras, is time-barred from these proceedings. Both parties concede that New York has a one year statute of limitations for intentional infliction of emotional distress claims and Plaintiff's claim was filed after the one-year period had expired. N.Y. CPLR 215(3) (McKinney 2001). Additionally, both parties concede that courts in this circuit are split as to whether an intentional tort claim may be tolled while a plaintiff's claim is pending before the EEOC. Some courts have found that a claim for intentional infliction of emotional distress should be tolled because: (1) it is in the best interests of judicial efficiency; and (2) one of the main purposes of Title VII was to allow the EEOC time to investigate employment discrimination claims in order to facilitate dispute resolution before the commencement of litigation. See, e.g., Forbes v. Merrill Lynch, 957 F. Supp. 450; 455-456 (S.D.N.Y. 1997) (intentional of emotional distress claim is tolled while Title VII claim is pending before the EEOC); Brown v. Bronx Cross County Medical Group, 834 F. Supp. 105, 111 (S.D.N.Y. 1993) (same). Other courts have held that such state claims are not tolled because they provide for distinct and separate remedies from the Title VII claims pending before the EEOC.See, e.g., Stordeur v. Computer Associates Int'l, Inc., 995 F. Supp. 94, 99 (E.D.N.Y. 1998) (state law claims are not tolled during pendency of EEOC complaints); Walker v. Weight Watchers Int'l, 961 F. Supp. 32, 36-37 (E.D.N.Y. 1997) (same); Lamb v. Citibank, N.A., No. 93 Civ. 2358 (MBM), 1994 WL 497275 at *8 (S.D.N.Y. Sept. 12, 1994.) (same)

In Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975), the Supreme Court held that the statute of limitations on a 42 U.S.C. § 1981 claim is not tolled while a Title VII claim arising from the same events is pending before the EEOC. The Court reasoned that "[t]he legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes." Id. at 459 (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 48); see also Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 322-323 (7th Cir. 1992) (applying Johnson to state law claims). It follows from Congress' manifestation of intent to permit Title VII plaintiffs the liberty other federal and state law remedies separately from their Title VII claims that Congress did not spare Title VII plaintiffs the obligation of pursuing those other claims diligently within the strictures of the applicable statutes of limitation. The Court thus finds that King's intentional infliction of emotional distress claim was not tolled by the pendency of her EEOC claim and must have been brought within the one year statute of limitations. Since it was not, King's claim is time-barred and Defendants' motion for summary judgment on this claim is granted.

IV. Tip Misappropriation

Plaintiff's final cause of action, tip misappropriation, is made against FOAF, and Terry and Carrie Morabito, individually, and is based on the Fair Labor Standards Act and the New York Labor Law. Because there is a genuine issue of material fact regarding whether tips were illegally taken from the waitresses' tip pool, Defendants' motion for summary judgment on this claim is denied.

V. Individual Liability of Employers

Defendants also claim that there is no genuine issue of material fact regarding Terry and Carrie Morabito's individual liability and, therefore, all individual claims against the Morabitos should be dismissed. This Court disagrees. A reasonable jury could find the Morabitos liable in their individual capacities. It is clear under Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) that an employer cannot be held liable for an employee's discriminatory acts under Title VII. However, Plaintiff does not claim that the Morabitos are liable under Title VII; rather, she alleges liability under N.Y. Exec. Law § 296(1) for discriminatory practices by an employer and § 296(6) for aiding and abetting an employee's discriminatory acts.

A. § 296(1) Claim

Under the New York State Human Rights law, "an individual may be subject to liability if he or she is an 'employer' (i.e., has an ownership interest or the power to do more than carry out personnel decisions made by others) or if the individual has aided or abetted in the discriminatory conduct." Graaf v. North Shore University Hospital, 1 F. Supp.2d 318, 324 (S.D.N.Y. 1998); see Patrowich v. Chemical Bank, 473 N.E.2d 11 (N.Y. 1984); N.Y. Exec. Law §§ 296(1), 296(6). InGraaf, the CEO of the company did not participate in the alleged discrimination, but the court held that his knowledge of the discrimination and failure to address the situation was enough to impose individual liability. See Graaf, 1 F. Supp.2d at 324. Likewise, in this case, the Morabitos are unquestionably "employers" and may have had knowledge of the discriminatory conduct. Defendents' motion for summary judgment on this claim is therefore denied.

B. § 296(6) Claim

Defendants' motion for summary judgment on the § 296(6) claim is also denied. In Hicks v. IBM, 44 F. Supp.2d 593, 600 (S.D.N.Y. 1999), the court found that an employer could be held liable under § 296(6) for aiding and abetting an employee's discriminatory act if he became a party to it by encouraging, condoning, or approving the behavior. In that case, the court refused to dismiss the § 296(6) claim on summary judgment because plaintiff alleged that her employers "failed to take adequate actions to correct the discrimination, and viewing these allegations in a favorable light, thereby encouraged, condoned or approved [the employee's] conduct." Id. Similarly, viewing the evidence in the light most favorable to Plaintiff in this case, a jury could find that the Morabitos were aware of Heras's behavior, but failed to take adequate steps to correct the problem.

Defendents argue that Leykis v. NYP Holdings, Ins., 899 F. Supp. 986 (E.D.N.Y. 1995), should control the question of individual liability in this case. In Leykis, the court found that an employer could not be held individually liable for discriminatory conduct when he was not alleged to be involved in the discriminatory scheme. Id. at 993. Leykis is inapplicable for two reasons. First, the Leykis court specifically recognized that it was not addressing an employer's individual liability under § 296(6) because the plaintiff did not plead a § 296(6) violation in her complaint. Id. at 994 n. 5. Second, the court explained that the action might have been saved had the plaintiff alleged any facts implicating the employer in the discriminatory policy. Id. at 994. In this case, Plaintiff alleges numerous facts implicating the Morabitos in the discriminatory plan including an unwritten, but well understood, policy that if there were ever a confrontation between a cook and a waitress, the waitress would be disciplined. Therefore, the Morabitos may be found individually liable under § 296(6); Defendants' motion for summary judgment on this claim is thus denied.

CONCLUSION

For the reasons set forth above, Defendants' motion for summary judgment is GRANTED in part and DENIED in part. The parties are ORDERED to submit a joint pre-trial order to this Court on or before August 24, 2001 and be trial ready within 48 hours by September 10, 2001.

So Ordered: