Opinion
117098/2009.
May 12, 2011.
Ismail Sekendiz Esq., Akin Smith, LLC, New York, NY, for Plaintiff.
Celena Mayo Esq. and Ricki Roer Esq., Wilson, Elser, Moskowitz, Edelman Dicker LLP, New York, NY, for Defendants.
DECISION AND ORDER
I. BACKGROUND
Plaintiff, an African-American woman, performed data entry in the mailroom of defendant Random House, Inc., under the direct supervision of defendant Swiss Post Solutions, Inc. Plaintiff alleges that both defendants jointly employed her, whereas defendants claim only Swiss Post Solutions employed her. She alleges that on February 17, 2009, she was transferred from her position at Random House to another workplace also supervised by Swiss Post Solutions. The parties dispute which defendant was responsible for the transfer. Although plaintiff refers throughout her complaint to a "termination," the complaint actually describes only her transfer to a different workplace managed by Swiss Post Solutions and then being denied a transfer from her new workplace to an alternative workplace. Upon the facts alleged, plaintiff claims a hostile work environment, retaliation, and aiding and abetting discrimination.
After defendants moved to dismiss the complaint, C.P.L.R. § 3211(a)(1) and (7), plaintiff amended her complaint. C.P.L.R. § 3025(a). Defendants now maintain their motion to dismiss against the amended complaint. After oral argument and for the reasons explained below, the court grants defendants' motion to the extent of dismissing plaintiff's second claim, for retaliation under state law, and her seventh claim, for interference with a protected right, against defendant Random House only. C.P.L.R. § 3211(a)(7); N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8-107(19). The court otherwise denies defendants' motion. C.P.L.R. § 3211(a)(1) and (7); N.Y. Exec. Law § 296(1) (a) and (e), (6), and (7); N.Y.C. Admin. Code §§ 8-107(1), (7), (13), and (19), 8-130.
II. PLAINTIFF'S CLAIMS MAY NOT BE DISMISSED BASED ON DEFENDANTS' DOCUMENTARY EVIDENCE.
Dismissal of the complaint's claims pursuant to C.P.L.R. § 3211 (a) (1) requires documentary evidence in admissible form that conclusively resolves all factual issues and establishes a defense as a matter of law. Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002); McCully v. Jersey Partners, Inc., 60 A.D.3d 562 (1st Dep't 2009); Zanett Lombardier, Ltd. v. Maslow, 29 A.D.3d 495 (1st Dep't 2006);Richbell Info. Servs. v. Jupiter Partners, 309 A.D.2d 288, 289 (1st Dep't 2003). The documentary evidence must plainly and flatly contradict the claims in the complaint. KSW Mech. Servs., Inc. v. Willis of N.Y., Inc., 63 A.D.3d 411 (1st Dep't 2009); Arfa v. Zamir, 55 A.D.3d 508, 509 (1st Dep't 2008); Kinberg v. Kinberg, 50 A.D.3d 512, 513 (1st Dep't 2008); Sprung v. Command Sec. Corp., 38 A.D.3d 478, 479 (1st Dep't 2007). The court may dismiss claims based on such evidence only if plaintiff fails to rebut it. Hicksville Dry Cleaners, Inc. v. Stanley Fastening Sys., L.P., 37 A.D.3d 218 (1st Dep't 2007).
Defendants' motion to dismiss based on documentary evidence fails because the evidence is not authenticated or in admissible form.Casey v. New York Elevator Elec. Corp., 82 A.D.3d 639 (1st Dep't 2011); Acevedo v. Audubon Mgt., 280 A.D.2d 91, 95 (1st Dep't 2001). Even if the evidence were admissible, it would not conclusively resolve all factual issues raised by plaintiff's claims. First, Swiss Post Solutions' unilateral stipulation that Swiss Post Solutions was plaintiff's sole employer does not bind plaintiff, because she in no way "manifested an adoption or belief in its truth." Addo v. Melnick, 61 A.D.3d 453, 454 (1st Dep't 2009) (quoting Fed.R.Evid. 801(d)(2)(B)). While plaintiff's unilateral confidentiality agreement does acknowledge that Swiss Post Solutions employed plaintiff, she does not unambiguously acknowledge that it solely employed her.
Defendants rely on the confidentiality agreement between both alleged employers in Adler v. 20/20 Companies, 82 A.D.3d 915 artis. 134 (2d Dep't 2011), where the agreement specifically delineated the roles and work performed by each defendant, providing a basis to conclude that only one of the defendants actually functioned as the plaintiff's employer. The confidentiality agreement here, in contrast, binds neither defendant and indicates nothing regarding Random House's functions.
Defendants' statistics from the United States Equal Employment Opportunity Commission, by showing that defendants employed other African-American and female employees, may suggest that defendants did not discriminate or retaliate against plaintiff or create a hostile work environment, but the statistics do not conclusively establish that fact. Similarly, the newspaper articles defendants rely on may show that Random House is owned by a large foreign corporation rather than an individual named Mark as plaintiff alleges, but these articles do not conclusively establish that no individual named Mark owned Random House or directly supervised the mailroom supervisors under whom plaintiff worked.
III. APPLICATION OF C.P.L.R. § 3211(a)(7) TO PLAINTIFF'S CLAIMS
Upon defendants' motion to dismiss claims pursuant to C.P.L.R. § 3211(a)(7), the court may not rely on facts alleged by defendants to defeat the claims unless the evidence demonstrates the absence of any significant dispute regarding those facts and completely negates the allegations against the moving defendants.Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595 (2008);Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326;Leon v. Martinez, artis. 134 84 N.Y.2d 83, 87-88 (1994); Yoshiharu Igarashi v. Shohaku Higashi, 289 A.D.2d 128 (1st Dep't 2001). The court must accept the complaint's allegations as true, liberally construe them, and draw all reasonable inferences in plaintiff's favor. Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326; Harris v. IG Greenpoint Corp., 72 A.D.3d 608, 609 (1st Dep't 2010); Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 144-45 (1st Dep't 2009). The applicable standard is thus whether reasonable inferences from the complaint sustain a claim, especially upon a preanswer motion to dismiss as here. Harris v. IG Greenpoint Corp., 72 A.D.3d at 609; Pepler v. Coyne, 33 A.D.3d 434, 435 (1st Dep't 2006). See Lappin v. Greenberg, 34 A.D.3d 277, 279 (1st Dep't 2006). In short, the court may dismiss a claim based on C.P.L.R. § 3211(a)(7) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 N.Y.2d at 88; Harris v. IG Greenpoint Corp., 72 A.D.3d at 609; Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 121 (1st Dep't 2002); Scott v. Bell Atl. Corp., 282 A.D.2d 180, 183 (1st Dep't 2001).
The court assesses employment discrimination claims under a particularly relaxed "notice pleading" standard. Vig v. New York Hairspray Co., L.P., 67 A.D.3d at 145. Under notice pleading,
plaintiff need not plead specific facts, but need only give defendant "fair notice" of the nature and grounds of her claims.Id. Although Vig v. New York Hairspray Co., L.P., 67 A.D.3d at 145, cites a 2002 United States Supreme Court decision applying the Federal Rules of Civil Procedure, the First Department decidedVig September 15, 2009, four months after the Supreme Court's rearticulation of federal pleading standards in Ashcroft v. Iqbal,___U.S. ___, 129 S. Ct. 1937 (2009), on which defendants rely. Vig therefore represents the First Department's determination to adhere to notice pleading standards under New York law regardless of Iqbal's implications for notice pleading under federal law.
A. Plaintiff Sufficiently Alleges That Both Defendants Were Her Employers.
Plaintiff's claims of a hostile workplace, retaliation, and vicarious liability for discrimination require her to allege that defendants were her employers. N.Y. Exec. Law § 296(1) (a) and (7); N.Y.C. Admin. Code § 8-107(1)(a), (7), and (13). Swiss Post Solutions acknowledges it employed plaintiff. Aff. in Supp. of Defs.' Mot. to Dismiss of Ricki E. Roer ¶ 2 and Ex. B (Apr. 30, 2010). Plaintiff gives Random House fair notice of her claim that Random House employed her by alleging that an individual named Mark owned Random House, directly supervised plaintiff's supervisors, had authority to terminate plaintiff or direct her transfer, and in fact exercised that authority by demanding that she be terminated or transferred from her current position at Random House. Sanchez v. Brown, Harris, Stevens, 234 A.D.2d 170 (1st Dep't 1996); State Div. of Human Rights v. GTE Corp., 109 A.D.2d 1082, 1083 (4th Dep't 1985); Santos v. Brookdale Hosp. Med. Ctr., 29 Misc. 3d 1207, 2010 WL 3911396, at *3 (Sup. Ct. Kings Co. 2010).See Villa Maria Institute of Music v. Ross, 54 N.Y.2d 691, 692 (1981); Vincente v. Silverstein Properties, Inc., 83 A.D.3d 586 (1st Dep't 2011); Arculeo v. On-Site Sales Marketing, LLC, 425 F.3d 193, 198 (2d Cir. 2005). Even assuming the improbability that the owner of a large, international publishing corporation directly supervised its mailroom, plaintiff's allegations sufficiently place defendants on notice that plaintiff claims a Random House employee directly supervised the mailroom and exercised such authority over plaintiff as to consider Random House her employer.
B. Plaintiff States Claims for a Hostile Work Environment.
State law prohibits discrimination in the form of a hostile work environment where "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 310 (2004). See N.Y. Exec. Law § 296(1)(a). Plaintiff readily pleads a hostile work environment, including defendants' knowledge of and acquiescence to that environment, by alleging that her manager repeatedly made specified racially derogatory comments, addressed both to plaintiff and to others in her presence; asked her about her preferred sexual positions; solicited sexual relations from her; and commented about her body. She further alleges that the comments distressed her to the point of tears, and, when she complained about the continuing racially derogatory comments to her manager's supervisor, the supervisor dismissed the manager's behavior as "Joe's way of apologizing." Aff. in Opp'n of Ismail S. Sekendiz Ex. A, ¶ 38 (June 16, 2010).
Related to these racially and sexually explicit taunts, plaintiff alleges that defendants failed to provide her the requisite uniform and then singled her out for criticism due to her deficient attire. Although criticism of her attire, even if unfounded and arbitrary, by itself might not suggest race or gender discrimination, the more explicit remarks cast an inferable discriminatory motive on the harassment over her attire as well.
In any event, the explicit remarks delineated above sustain plaintiff's claim of a hostile work environment under city law. Moreover, because the State Human Rights Law represents "a floor below which the City's Human Rights law cannot fall," plaintiff also states a claim of a hostile work environment under city law. Williams v. New York City Hous. Auth., 61 A.D.3d 62, 66-67 (1st Dep't 2009). See N.Y.C. Admin. Code §§ 8-107(1) and (13) (b), 8-130;Brightman v. Prison Health Servs., Inc., 62 A.D.3d 472 (1st Dep't 2009).
C. Retaliation and Interference with a Protected Right
To sustain a claim for retaliation, plaintiff must allege that she engaged in protected activity, that her employer was aware of the protected activity, and that she suffered an adverse employment action as a result of the protected activity.Forrest v. Jewish. Guild for the Blind, 3 N.Y.3d at 312-13;Bendeck v. NYU Hosps. Ctr, 77 A.D.3d 552, 553 (1st Dep't 2010). Plaintiff alleges that she engaged in protected activity by complaining on two separate occasions about being harassed. She alleges that defendant Swiss Post Solutions was aware of the protected activity because her site manager Jeff Price, a Swiss Post Solutions employee, was at the meeting where she initially complained, subsequently warned her not to use the word "harassment," and later reassigned her. Although plaintiff does not so distinctly allege that Random House knew of her protected activity before demanding her transfer, she does allege that Random House's owner or at least a Random House employee directly supervised her supervisors and was always at her work site. Since it reasonably may be inferred that plaintiff was not privy to communications between "Mark" and her supervisors, she is not necessarily expected, before disclosure, to make more specific allegations regarding defendants' knowledge. The function of a liberal notice pleading standard is precisely to permit an opportunity for such disclosure. Mohammad v. Board of Mgrs. of 50 E. 72nd St. Condominium, 262 A.D.2d 76, 77 (1st Dep't 1999). Under the City Human Rights Law, moreover, plaintiff would state a claim for defendants' vicarious liability even if she did not allege their knowledge, since she alleges that defendants' employees or agents ordered and carried out the retaliation. N.Y.C. Admin. Code § 8-107(13) (a).
Plaintiff also alleges adverse employment action under the City Human Rights Law by alleging that defendants transferred her to a different work location and gave her an undesirable schedule. N.Y.C. Admin. Code § 8-107(7) and 13(a); Albunio v. City of New York, 16 N.Y.3d 472, 476 (2011). Plaintiff's citation, even in her amended complaint, to N.Y.C. Admin. Code § 8-107(1)(e), a subsection inapplicable to her allegations, does not require dismissal of her retaliation claim. The court looks only to whether plaintiff sustains a claim under the law, not whether she accurately cites that law or states the claim with artful precision. Leon v. Martinez, 84 N.Y.2d at 88; Harris v. IG Greenpoint Corp., 72 A.D.3d at 609; Pepler v. Coyne, 33 A.D.3d at 435;Frank v. DaimlerChrysler Corp., 292 A.D.2d at 121.
Unlike the State Human Rights Law, the City Human Rights Law expressly forbids retaliation "in any manner," N.Y.C. Admin. Code § 8-107(7); Williams v. New York City Hous. Auth., 61 A.D.3d at 70, and expressly requires a more liberal interpretation than state or federal anti-discrimination law. N.Y.C. Admin. Code § 8-130; Albunio v. City of New York, 16 N.Y.3d at 477; Williams v. New York City Hous. Auth., 61 A.D.3d at 70. Under the State Human Rights Law, inconvenience and an undesirable schedule do not constitute adverse employment actions. N.Y. Exec. Law § 296(7); Forrest v. Jewish Guild for the Blind, 3 N.Y.3d at 307; Ponterio v. Kaye, 25 A.D.3d 865, 869 (3d Dep't 2006). Because plaintiff does not allege that Random House supervisors or employees took any action besides requesting her transfer, her state law claim for retaliation must be dismissed against Random House. Forrest v. Jewish Guild for the Blind, 3 N.Y.3d at 307; Ponterio v. Kaye, 25 A.D.3d at 869. Plaintiff does allege Swiss
Post Solutions' adverse employment action under state law, however, because she further sets forth that, after she complained, Swiss Post Solutions employees and supervisors increased their harassment of her, threatened her, and attempted to intimidate her. N.Y. Exec. Law § 296(1)(e) and (7); Mohammad, v. Board of Mgrs. of 50 E. 72nd St. Condominium, 262 A.D.2d at 77.
Plaintiff alleges a causal connection between her protected conduct and the adverse employment actions by recounting that, six days after she initially complained about her harassment and three days after she followed up, her site manager warned her "don't use the word harassment it is a very dangerous word" and "if you don't listen to and follow my directions you will be getting transferred." Sekendiz Aff. Ex. A, ¶ 39. Plaintiff further alleges that eight days later the same site manager transferred plaintiff to a new and undesirable position, at the direction of Random House's owner. Finally, plaintiff alleges that her initial harasser stepped up his insults against her and that his supervisor brushed off her ensuing complaint.
By alleging the manager's threats, plaintiff also states a claim against Swiss Post Solutions for interference, through threats or intimidation, with a protected right. N.Y.C. Admin. Code § 8-107(19). See Montanez v. New York City Hous. Auth., 5 A.D.3d 314, 315 (1st Dep't 2004). Because plaintiff does not allege that any Random House supervisors or employees threatened or intimidated her or took any action besides requesting her transfer, her claim against Random House for interference with a protected right must be dismissed. Id.
D. Plaintiff States Claims for Aiding and Abetting Discrimination.
Although defendants cannot aid and abet their own discriminatory actions, plaintiff's specification of each defendant's actions and supervisory role states a claim under state law against each defendant for aiding and abetting race and gender discrimination by the other defendant. N.Y. Exec. Law § 296(6); Sanchez v. Brown, Harris, Stevens, 234 A.D.2d 170; Mitchell v. TAM Equities, Inc., 27 A.D.3d 703, 707 (2d Dep't 2006); Strauss v. New York State Dept. of Educ., 26 A.D.3d 67, 73 (3d Dep't 2005). Again, because the State Human Rights Law represents "a floor below which the City's Human Rights law cannot fall," plaintiff also states a claim for aiding and abetting discrimination under city law.Williams v. New York City Hous. Auth., 61 A.D.3d at 66-67.See N.Y.C. Admin. Code §§ 8-107(6) and (13)(a), 8-130;Brightman v. Prison Health Servs., Inc., 62 A.D.3d 472. Under the City Human Rights Law, plaintiff states a further claim of defendants' vicarious liability for aiding and abetting by specifically alleging that Swiss Post Solutions' employees Cary Richardson and Jeff Price excused and acquiesced in the racial and sexual harassment of plaintiff and threatened her with retaliation and that Random House's owner or employee ordered plaintiff's transfer. N.Y.C. Admin. Code § 8-107(13)(a).
IV. CONCLUSION
Consequently, and as set forth above, the court grants defendants' motion to dismiss only to the extent of dismissing, against defendant Random House, Inc., only, plaintiff's second claim, for retaliation under state law, and her seventh claim, for interference with a protected right, C.P.L.R. § 3211(a) (7); N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8-107(19), and otherwise denies defendants' motion. C.P.L.R. § 3211(a) (1) and (7); N.Y. Exec. Law § 296(1)(a) and (e), (6), and (7); N.Y.C. Admin. Code §§ 8-107(1), (7), (13), and (19), 8-130. This decision constitutes the court's order.