Opinion
1:22-cv-10488 (JHR) (SDA)
11-22-2023
Alicia Bloise, Plaintiff, v. Q4 Generational Wealth, Inc., et al., Defendants.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE JENNIFER H. REARDEN, UNITED STATES DISTRICT JUDGE:
Presently before the Court is a motion by pro se Defendants Jahee Bridgewater (“Bridgewater”) and Melanie Burgos (“Burgos”) (together, the “Individual Defendants”), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the claims against them that are contained in the Amended Complaint filed by Plaintiff Alicia Bloise (“Plaintiff”) for failure to state a claim. (Defs.' 9/27/23 Mot., ECF No. 43.) For the reasons set forth below, it is respectfully recommended that the Individual Defendants' motion be GRANTED IN PART and DENIED IN PART and that Plaintiff be granted leave to amend.
BACKGROUND
This action was filed on December 12, 2022, alleging federal and state law discrimination claims against the corporate defendant, Q4 Generational Wealth, Inc. (d/b/a Calientes Restaurant & Bar) (“Q4/Calientes”) and the Individual Defendants, as well as a New York Labor Law claim against Q4/Calientes. (Compl., ECF No. 1.) On June 13, 2023, the Individual Defendants filed a motion to dismiss the Complaint, pursuant to Rules 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure, for insufficient service of process and for failure to state a claim. (Defs.' 6/13/23 Mot., ECF No. 25.) On July 25, 2023, this Court entered a Report and Recommendation recommending that the Individual Defendants' motion to dismiss for insufficient service of process be denied; that the Complaint be sua sponte dismissed for failure to comply with Rule 8 of the Federal Rules of Civil Procedure; and that Plaintiff be given leave to file an amended complaint that conforms to the requirements of Rule 8. (7/25/23 R&R, ECF No. 34.)
Although Plaintiff refers in the Amended Complaint to corporate “defendants” there is only a single named corporate defendant.
The R&R explained that the 248-paragraph Complaint was unclear as to precisely what causes of action were being pled against the Individual Defendants, and that the Complaint did not comply with Rule 8 of the Federal Rules of Civil Procedure, given its prolix nature. (7/25/23 R&R, ECF No. 34, at 4-8.) The Court noted that Rule 8 required “a short and plain statement of the claim showing that the pleader is entitled to relief.” (Id. at 5 (quoting Fed.R.Civ.P. 8(a)(2).)
On July 31, 2023, Plaintiff filed an Amended Complaint. (Am. Compl., ECF No. 38.) On September 27, 2023, the Individual Defendants filed the motion to dismiss that is now before the Court. (See Defs.' 9/27/23 Mot.) In support of their motion, the Individual Defendants filed a four-page memorandum of law. (Defs.' 9/27/23 Mem., ECF No. 44.) On October 3, 2023, Plaintiff filed her opposition memorandum. (Pl.'s 10/3/23 Opp. Mem., ECF No. 45.) On October 7, 2023, the Individual Defendants filed a document in response to Plaintiff's opposition memorandum, which is denominated as “EVIDENCE TO SUPPORT MOTION TO DISMISS ON BEHALF OF THE DEFENDANTS MELANIE BURGOS & JAHEE BRIDGEWATER,” which the Court construes as being the Individual Defendants' reply. (Defs.' 10/7/23 Reply, ECF No. 46.)
The Amended Complaint was served upon Q4/Calientes (see 8/31/23 Aff. of Service, ECF No. 40), but Q4/Calientes has not appeared in this action.
LEGAL STANDARDS ON MOTION TO DISMISS
A defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
In deciding a motion to dismiss, the Court “must accept as true all of the allegations contained in a complaint[,]” but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). “Determining whether a complaint states a plausible claim . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted).
DISCUSSION
The Court below considers the legal sufficiency of each of the claims pled in the Amended Complaint against the Individual Defendants, which arise under 42 U.S.C. § 1981 (“Section 1981”), the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”).
In her opposition memorandum, Plaintiff states that “Defendants made no motion to dismiss Plaintiff's claims under Title VII [of the Civil Rights Act] ....” (Pl.'s 10/3/23 Opp. Mem. at 10.) The reason that the Individual Defendants did not move to dismiss Title VII claims is because none were asserted against them in the Amended Complaint. The only Title VII claim in the Amended Complaint is contained in the First Cause of Action, which states that it is pled “[a]gainst Corporate DEFENDANTS CALIENTE'S BAR and Q4.” (Am. Compl. at p. 15.) In any event, there can be no Title VII claim against the Individual Defendants because individuals are not subject to liability under Title VII. See Konteye v. N.Y.C. Dep't of Educ., No. 17-CV-02876 (GBD) (RWL), 2019 WL 4418647, at *12 (S.D.N.Y. Apr. 10, 2019) (citing cases), report and recommendation adopted, 2019 WL 3229068 (S.D.N.Y. July 18, 2019); see also Sassaman v. Gamache, 566 F.3d 307, 315-16 (2d Cir. 2009) (affirming dismissal of Title VII claim against individual defendant); Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004) (“individuals are not subject to liability under Title VII”).
I. Discrimination Claims Under 42 U.S.C. § 1981 (Fifth And Sixth Causes Of Action)
In the Fifth and Sixth Causes of Action, Plaintiff asserts discrimination claims against the Individual Defendants under 42 U.S.C. § 1981. (Am. Compl. ¶¶ 149-67.) Plaintiff alleges that she was subject to a racially hostile work environment and subject to acts of unlawful discrimination, including termination and retaliation because of her race/color. (See id.)
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State . . . to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981. “[Individuals may be held liable under § 1981.” Abalola v. St. Luke's-Roosevelt Hosp. Ctr., No. 20-CV-06199 (GHW), 2022 WL 973861, at *5 (S.D.N.Y. Mar. 30, 2022) (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000)). “[I]n order to make out a claim for individual liability under § 1981, a plaintiff must demonstrate ‘some affirmative link to causally connect the actor with the discriminatory action.'” Id. (quoting Whidbee, 223 F.3d at 75). “A claim seeking personal liability under section 1981 must be predicated on the actor's personal involvement.” Id. (quoting Whidbee, 223 F.3d at 75); see also Sherman v. Yonkers Pub. Sch., No. 21-CV-07317 (CS), 2023 WL 137775, at *5 (S.D.N.Y. Jan. 9, 2023) (“[t]he violation must be established against the supervisory official directly”) (quoting Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)).
A. Hostile Work Environment
“Section 1981 has been interpreted to ‘provide[ ] a cause of action for race-based employment discrimination based on a hostile work environment.'” Littlejohn v. City of New York, 795 F.3d 297, 320 (2d Cir. 2015) (quoting Whidbee, 223 F.3d at 69). To establish a hostile work environment under § 1981, “a plaintiff must show that ‘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.'” Id. at 32021 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (citations and internal quotation marks omitted). “This standard has both objective and subjective components: the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.” Id. at 321 (internal citations omitted); see also Robinson v. Harvard Prot. Servs., 495 Fed.Appx. 140, 141 (2d Cir. 2012). In considering whether a plaintiff suffered a hostile work environment, courts consider “the totality of the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'” Littlejohn, 795 F.3d at 321 (quoting Harris, 510 U.S. at 23).
“To survive a motion to dismiss, a plaintiff need only plead facts sufficient to support the conclusion that she was faced with harassment . . . of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.” Small v. N.Y.C. Dep't of Educ., 650 F.Supp.3d 89, 99-100 (S.D.N.Y. 2023) (internal quotation marks omitted) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)). “The Second Circuit has ‘repeatedly cautioned against setting the bar too high in this context.'” Id. (quoting Patane, 508 F.3d at 113); see also Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004) (“The environment need not be ‘unendurable' or ‘intolerable.'”) (quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)). “[T]he plaintiff also must show that the hostile conduct occurred because of a protected characteristic.” Small, 650 F.Supp.3d at 100; see also Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (“Of course, ‘[i]t is axiomatic that mistreatment at work, whether through subjection to a hostile environment or through [other means], is actionable [under, inter alia, Section 1981] only when it occurs because of an employee's . . . protected characteristic,' such as race or national origin.”) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)) (emphasis omitted)).
“[W]hether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs, considered cumulatively in order to obtain a realistic view of the work environment.” Charley v. Total Off. Plan. Servs., Inc., 202 F.Supp.3d 424, 429 (S.D.N.Y. 2016) (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997)); see also Levy v. NYC Health + Hosps., No. 21-CV-09142 (VEC), 2023 WL 2563116, at *7 (S.D.N.Y. Mar. 10, 2023) (“For racist slurs to constitute a hostile work environment, there must be more than sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.”) (alterations omitted) (citing Kemp v. A & J Produce Corp., 164 Fed.Appx. 12, 14 (2d Cir. 2005)).
Plaintiff alleges that she “was subjected to a plethora of degrading epithets and insults made directly by [Defendant Burgos], and her employees, related to [Plaintiff's] race/color (African American/black)” and occurred “on an almost daily basis.” (Am. Compl. ¶¶ 26-27.) Plaintiff's co-workers “use[d] racial slurs in the Spanish Language that meant ‘black girl' or ‘the ghetto black girl' when referring to [Plaintiff].” (Id. ¶ 28.) The racial slurs often occurred in front of Defendant Burgos and Defendant Burgos herself called Plaintiff “the ghetto black girl.” (Id. ¶¶ 31-32 (emphasis omitted).) In addition, Defendant Burgos and Plaintiff's co-workers regularly used the n-word around her. (Id. ¶¶ 37-40.)
Plaintiff further alleges that Defendant Bridgewater informed Plaintiff that the “promoters” asked him to take Plaintiff off of the schedule during their promotional and party event nights because Plaintiff is black, and acknowledged that the promoters were racist. (Am. Compl. ¶¶ 44-45.) The promoters would not allow Plaintiff to make their drinks and refused anything Plaintiff offered them. (Id. ¶ 43.) Neither Defendant Bridgewater nor Defendant Burgos spoke to the promoters about their discriminatory requests and took no remedial action to address the promoters' discriminatory behavior toward Plaintiff. (Id. ¶ 47.) Finally, Plaintiff alleges that both Defendant Burgos and Defendant Bridgewater “knew that [Plaintiff] was being subjected to a hostile work environment, but took no action to abate, control or prevent same.” (Id. ¶ 93.)
Assuming Plaintiff's allegations are true, as the Court must do in the context of the pending motion to dismiss, see Iqbal, 556 U.S. at 678, the Court finds that Plaintiff plausibly has alleged that Defendant Burgos participated in conduct that created a hostile work environment. Plaintiff's allegations that Defendant Burgos and co-workers regularly used the n-word and other epithets related to her race are sufficient at this stage to plausibly allege a hostile work environment. See Spencer v. Glob. Innovative Grp., LLC, No. 17-CV-07604 (PGG) (BCM), 2023 WL 6633860, at *10 (S.D.N.Y. Oct. 12, 2023) (discussing relevant Second Circuit precedent and denying motion to dismiss hostile work environment claim based on “repeated use of the n-word by a supervisor in the presence of his African-American subordinates in a tone of voice calculated to be heard”) (citing, inter alia, Rivera, 743 F.3d at 24 (“[p]erhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as [the n-word] by a supervisor in the presence of his subordinates.”)); see also Levy, 2023 WL 2563116, at *8 (complaint adequately alleged “steady barrage” of racial slurs sufficient to state hostile work environment claim).
However, the Court finds that Plaintiff has not plausibly alleged a hostile work environment claim against Defendant Bridgewater. Plaintiff does not allege that Defendant Bridgewater used racial slurs, made racially offensive comments or otherwise participated in conduct giving rise to a hostile work environment. Rather, she alleges that he was aware that Plaintiff was being subject to a hostile work environment and took no action to address it. The Court finds that these allegations, without more, are insufficient to allege Defendant Bridgewater's personal involvement under Section 1981. See Fellah v. City Univ. of New York, No. 20-CV-06423 (JPC), 2022 WL 4619902, at *6 (S.D.N.Y. Sept. 30, 2022) (allegations that individual defendant failed to take sufficient action to remedy plaintiff's work situation insufficient to plead personal involvement in hostile work environment claim); Quinones v. City of Binghamton, No. 19-CV-01460 (GLS) (ML), 2022 WL 43764, at *5 (N.D.N.Y. Jan. 5, 2022) (holding that allegation that one of defendants “failed to take any ameliorative action, after receiving notice of pervasive racism” was insufficient to demonstrate personal involvement (internal quotation marks omitted)); Peck v. Cnty. of Onondaga, N.Y., No. 21-CV-00651 (DNH), 2021 WL 3710546, at *10 (N.D.N.Y. Aug. 20, 2021) (holding that failure to remedy discriminatory conduct by others is insufficient to constitute personal involvement following Tangreti).
B. Termination
Plaintiff also alleges that she was terminated because of her race. Claims of racial discrimination under § 1981 are analyzed using the familiar McDonnell Douglas burden-shifting framework. See Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). However, at the motion to dismiss stage, a plaintiff “is not required to plead a prima facie case under McDonnell Douglas.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015). Rather, to survive a motion to dismiss a Section 1981 claim, a plaintiff must plausibly show that she “is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Littlejohn, 795 F.3d at 311. The alleged facts “need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination.” Id. They must nonetheless “give plausible support to a minimal inference of discriminatory motivation.” Id. In addition, in order to state a claim under Section 1981, a plaintiff must plausibly allege “that race was a but-for cause of [her] injury.” Comcast Corp. v. Nat' Ass'n of Afr. Am.-Owned Media, ___U.S.___, 140 S.Ct. 1009, 1014 (2020). In other words, a plaintiff must plead facts supporting an inference that, “but-for” her race, she would not have suffered the loss of any legal interests protected by Section 1981. “[I]t is insufficient to merely plead that race was a motivating factor in the discriminatory action.” Brown v. Montefiore Med. Ctr., No. 19-CV-11474 (ALC), 2021 WL 1163797, at *5 (S.D.N.Y. Mar. 25, 2021) (citing Comcast Corp., 140 S.Ct. at 1017-18). “This can be a sweeping standard” and events often “have multiple but-for causes.” Bostock v. Clayton Cnty., Ga., ___U.S.___, 140 S.Ct. 1731, 1739 (2020).
Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination, i.e., that (1) she belonged to a protected class; (2) was qualified for the position she held; (3) suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. See Brown, 673 F.3d at 150 (quoting Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008)).
Plaintiff alleges that “[o]n or about Saturday, May 14, 2022, approximately three hours before she was scheduled to start her shift, [she] sent a message to [Defendant Burgos] indicating that [Plaintiff] was calling out of work due to a family emergency.” (Am. Compl. ¶ 52.) According to Plaintiff, Defendant Burgos did not respond to Plaintiff's message, but on Tuesday, May 17, 2022, “removed [Plaintiff] from the schedule in retaliation for [Plaintiff] calling out on Saturday, May 14th.” (Id. ¶¶ 55-56.) Plaintiff further alleges that on Thursday, May 19, 2022, at approximately 2:06 p.m., Defendant Burgos sent her a text message that read:
Don't be a salty bitch . . . I never new [sic] you was so jealous. Carry on being a fake designer wearing whore. Just take your L the way you take multiple dicks. You suck as a bartender that's why you don't make any money here. Clarisa just got here and she snatched all your customers. You can fuck with Clari or Rose. You're the third little piggy . . . I have multiple customers that said you give it up the pussy for crab legs it's not just your ex best friend saying that. So keep talking shit about me. All you doing is making me more popular. Now go get vaccinated and get a job bum ass bitch.(Id. ¶¶ 57-59.) Plaintiff alleges that she was unlawfully terminated on May 19, 2022, i.e., the day that the foregoing text message was sent, “in part” because of her race/color. (Am. Compl. ¶¶ 17, 141, 145, 155.)
In their reply, the Individual Defendants attach a text message suggesting that Plaintiff quit and was not terminated. (See Defs.' 10/7/23 Reply at 2.) However, the Court “do[es] not consider matters outside the pleadings in deciding a motion to dismiss for failure to state a claim.” Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 202 (2d Cir. 2013).
The Court finds that these allegations are insufficient to plausibly allege that Plaintiff was terminated because of her race. Plaintiff appears to assert that the May 19, 2022 text message, which included the statement “[n]ow go get vaccinated and get a job bum ass bitch[]” constituted her termination. Assuming Plaintiff was terminated on May 19, 2022 as she alleges, she still has not plausibly alleged that she was terminated because of her race. Although an inference of discrimination can arise from discriminatory comments directed at a plaintiff's racial group, see Kirkland-Hudson v. Mount Vernon City Sch. Dist., No. 21-CV-00695 (KMK), 2023 WL 2691622, at *19 (S.D.N.Y. Mar. 29, 2023) (citing Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996)), “a plaintiff must still plausibly allege that her protected characteristic was causally linked to the adverse employment action.” Gurley v. David H. Berg & Assocs., No. 20-CV-09998 (ER), 2022 WL 309442, at *3 (S.D.N.Y. Feb. 2, 2022) (citing Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002)). The text message, while distasteful, makes no reference to Plaintiff's race. (Am. Compl. ¶ 59.) And, although Plaintiff alleges that Defendant Burgos made prior discriminatory comments regarding her race, she has not alleged any connection between those comments and her alleged termination. See Mesias v. Cravath, Swaine & Moore LLP, 106 F.Supp.3d 431, 438 (S.D.N.Y. 2015) (holding that, for remarks to raise an inference of discriminatory intent, there must be “a nexus between the remarks and an adverse employment decision”).
Similarly, Defendant Burgos's offensive comments made in text messages after Plaintiff's termination (see, e.g., Am. Compl. ¶¶ 66, 70, 81) do not suggest that Plaintiff was terminated based upon her race. Rather, as Plaintiff herself alleges, such comments were consistent with the hostile work environment at ¶ 4/Calientes. (See id. ¶ 63 (“[T]hese messages were not surprising to PLAINTIFF, as this was the type of conduct that DEFENDANT BURGOS and DEFENDANT BRIDGWATER allowed, supported and condoned against PLAINTIFF while PLAINTIFF worked for DEFENDANTS CALIENTE'S BAR and Q4.”).)
Plaintiff's unlawful termination claim against Defendant Bridgewater should be dismissed for the additional reason that Plaintiff has not alleged that Defendant Bridgewater had any role in her alleged termination. See Lewis v. Roosevelt Island Operating Corp., 246 F.Supp.3d 979, 992 (S.D.N.Y. 2017) (dismissing Section 1981 unlawful termination claim against individual defendants when complaint contained “no allegations regarding their role in [the plaintiff's] termination) (citing Littlejohn, 795 F.3d at 320 (dismissing claims against individuals where they did not participate in decision to demote plaintiff)).
C. Retaliation
Section 1981 “prohibits not only racial discrimination but also retaliation against those who oppose it.” University of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 354-55 (2013). Retaliation claims under § 1981 are analyzed under the McDonnell Douglas burdenshifting framework. See Littlejohn, 795 F.3d at 315. To state a retaliation claim, a plaintiff must plausibly allege (1) that she participated in protected activity, (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action. See id. at 315-16. “The Supreme Court has held that in the context of a Title VII retaliation claim, which equally applies in the context of a Section 1981 claim, an adverse employment action is any action that could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Cadet v. All. Nursing Staffing of New York, Inc., 632 F.Supp.3d 202, 223 (S.D.N.Y. 2022) (cleaned up). “This definition covers a broader range of conduct than does the adverse-action standard for claims of discrimination and is not limited to discriminatory actions that affect the terms and conditions of employment.” Id. (alteration omitted).
Plaintiff alleges that she texted Defendant Burgos on May 19, 2022 that she was “going to [sue] [Defendant Burgos] for [the 2:06 p.m. text message] this is harassment thank you” and, in retaliation, Defendant Burgos called her a “rat” and responded with other epithets. (Am. Compl. ¶¶ 65-69.) Although “[e]mployer actions after termination may, in some instances, constitute retaliatory action[,]” Shetty v. SG Blocks, Inc., No. 20-CV-00550 (ARR) (SMG), 2020 WL 3183779, at *9 (E.D.N.Y. June 15, 2020), the Court finds that Plaintiff's allegations regarding Defendant Burgos' alleged comments are insufficient to allege an adverse employment action even under the broad range of conduct applicable to retaliation claims. Cf. Brand v. New Rochelle City Sch. Dist., No. 19-CV-7263, 2022 WL 671077, at *14 (S.D.N.Y. Mar. 7, 2022) (speaking poorly about plaintiff does not constitute adverse employment action in retaliation context) (citing cases) (granting motion for summary judgment on Title VII retaliation claim).
Plaintiff's retaliation claim against Defendant Bridgewater should be dismissed for the additional reason that Plaintiff has not alleged that Defendant Bridgewater was aware of Plaintiff's statement to Defendant Burgos or was involved in taking any adverse action against her.
II. Discrimination Claims Under NYSHRL (Eighth And Ninth Causes Of Action)
In the Eighth and Ninth Causes of Action, Plaintiff asserts discrimination claims against the Individual Defendants under the NYSHRL. (Am. Compl. ¶¶ 178-203.) In particular, Plaintiff alleges that the Individual Defendants are liable for aiding and abetting alleged discrimination and retaliation by Calientes/Q4. (Id. ¶¶ 179, 192.)
The NYSHRL § 296(1)(a) makes it “an unlawful discriminatory practice . . . [f]or an employer . . . because of an individual's . . . race . . . [or] sex [or] disability. . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” N.Y. Exec. Law § 296(1)(a). The statue also makes it an unlawful discriminatory practice “for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so.” N.Y. Exec. Law § 296(6).
Historically, NYSHRL claims were subject to largely the same analysis as federal civil rights law such as Title VII and Section 1981. However, in June 2019, the New York State Legislature amended the NYSHRL to require that courts construe that statute “liberally for the accomplishment of [its] remedial purposes . . . regardless of whether federal civil rights laws, including those laws with provisions worded comparably . . . have been so construed.'” Cooper v. Franklin Templeton Invs., No. 22-CV-02763, 2023 WL 3882977, at *3 (2d Cir. June 8, 2023) (quoting N.Y. Exec. Law § 300 (2023)) (noting but not resolving impact of amendments since claims fell short under more liberal NYCHRL standard). “While New York courts have not yet produced any substantive analysis of how this amendment changes standards of liability under the NYSHRL, courts in this District have interpreted the amendment as ‘render[ing] the standard for claims closer to the standard of the NYCHRL[.]'” Everett v. New York City Dep't of Educ., No. 21-CV-07043 (JPC), 2023 WL 5629295, at *11 (S.D.N.Y. Aug. 31, 2023) (quoting Livingston v. City of New York, 563 F.Supp.3d 201, 232 n.14 (S.D.N.Y. 2021)); see also Doolittle v. Bloomberg L.P., 22-cv-09136 (JLR), 2023 WL 7151718, at *7 (S.D.N.Y. Oct. 31, 2023). “The case law, however, has yet to definitively resolve whether the NYSHRL's liability standard is now coextensive with that of the NYCHRL, or whether it requires more, so as to impose a standard between federal and city law.” Wheeler v. Praxair Surface Techs., Inc., No. 21-CV-01165 (PAE), 2023 WL 6282903, at *10 (S.D.N.Y. Sept. 26, 2023). Because here, as in Wheeler, the parties do not meaningfully engage with this issue, the Court follows the approach taken by that Court and assumes arguendo, for purposes of this motion, that the amended NYSHRL standard is the same as standard under the NYCHRL without prejudice to Defendants' right to later attempt to demonstrate that the NYSHRL sets a more rigorous standard. See id. at *11.
The amendments apply to claims accruing after October 11, 2019. See Wellner v. Montefiore Med. Ctr., No. 17-CV-03479 (KPF), 2019 WL 4081898, at *5 n.4 (S.D.N.Y. Aug. 29, 2019). Accordingly, they apply to Plaintiff's claims.
A. Primary Liability
The NYSHRL limits primary liability for discrimination under § 296(1)(a) to employers. See N.Y. Exec. Law § 296(1)(a). In Doe v. Bloomberg, L.P., the New York Court of Appeals clarified that the “ownership/personnel decisions” test relevant to defining “employer” in certain federal statutes, did not apply to the NYSHRL and that NYSHRL “does not render employees liable as individual employers.” Id., 36 N.Y.3d 450, 457-58 (2021) (citing Patrowich v. Chemical Bank, 63 N.Y.2d 541 (1984)); see also Bueno v. Eurostars Hotel Co., S.L., No. 21-CV-00535 (JGK), 2022 WL 95026, at *7 (S.D.N.Y. Jan. 10, 2022) (“Under a recent decision by the New York Court of Appeals, a corporate employee - even its owner and CEO - no longer qualifies as an ‘employer' under [the NYSHRL].”).
Nonetheless, any person may be liable for aiding and abetting unlawful discrimination under § 296(6). Courts in this Circuit have diverged on what is required for an individual defendant to be liable under that subsection. As an initial matter, the Court agrees with those courts that have held that liability first must be established as to a principal (which in the case of aiding and abetting discrimination under § 296(1)(a) can only be an employer), before accessorial liability can be found as to an alleged aider and abettor. See Nicholson v. Staffing Auth., No. 10-CV-02332 (JLC), 2011 WL 344101, at *2 (S.D.N.Y. Feb. 1, 2011) (“A predicate requirement of aider-and-abettor liability is a finding of primary liability as to the employer.”); see also Bliss v. MXK Rest. Corp., 220 F.Supp.3d 419, 426-27 (S.D.N.Y. 2016) (holding that dismissal of discrimination claim brought under NYSHRL against employer was “fatal” to the aiding and abetting claim against an individual defendant); Conklin v. Cnty. of Suffolk, 859 F.Supp.2d 415, 436 (E.D.N.Y. 2012) (quoting Pellegrini v. Sovereign Hotels, Inc., 740 F.Supp.2d 344, 356 (N.D.N.Y.2010) (“Importantly, since it is the employer's participation in the discriminatory practice which serves as the predicate for the imposition of liability on others for aiding and abetting, a plaintiff cannot prevail against an individual on her state claims unless she can first establish the liability of her employer.”)); Mitchell v. TAM Equities, Inc., 27 A.D.3d 703, 707 (2d Dep't 2006); Strauss v. New York State Dep't of Educ., 26 A.D.3d 67, 73 (3d Dep't 2005).
Thus, in order to assert an aiding and abetting claim against the Individual Defendants, Plaintiff must first show that Q4/Calientes is liable under the NYSHRL. “The NYSHRL does not embrace a theory of respondeat superior or strict liability.” Alexander v. Priv. Protective Servs., Inc., No. 19-CV-10004 (JPO) (SDA), 2021 WL 8445829, at *3 (S.D.N.Y. Nov. 24, 2021), report and recommendation adopted, 2022 WL 1567447 (S.D.N.Y. May 18, 2022). Thus, an employer cannot be held liable under the NYSHRL for an employee's discriminatory act “unless the employer became a party to it by encouraging, condoning, or approving it[.]” Bloomberg, 36 N.Y.3d at 455 (citing Totem Taxi, Inc. v. N.Y. State Hum. Rts. Appeal Bd., 65 N.Y.2d 300, 305 (1985)); see also Priore v. New York Yankees, 307 A.D.2d 67, 73 (1st Dep't 2003) (noting that State and City Human Rights Laws “were not intended to target fellow employees acting without the knowledge or consent of the employer”).
Plaintiff argues that Q4/Calientes is liable because it, inter alia, failed “to train, supervise or instruct Individual Defendants with regard to discriminatory practices in the workplace.” (Pl.'s Opp. Mem. at 7 (citing Am. Compl. ¶¶ 83-85).) Because the Individual Defendants do not address this issue, the Court finds, for purposes of this motion, that Plaintiff plausibly has alleged NYSHRL claims against Q4/Calientes. Thus, the Court turns to Plaintiff's aiding and abetting claims.
B. Aiding And Abetting Liability
“To state a claim for aiding and abetting discrimination under the NYSHRL, a plaintiff must allege that the defendant actually participated in the unlawful conduct such that ‘the aider and abettor share the intent or purpose of the principal actor.'” Everett, 2023 WL 5629295, at *12 (quoting Rahman v. Limani 51, LLC, No. 20-CV-06708 (KMW), 2022 WL 3927814, at *7 (S.D.N.Y. Aug. 31, 2022) (internal quotation marks omitted)); see also McHenry v. Fox News Network, LLC, 510 F.Supp.3d 51, 68 (S.D.N.Y. 2020) (same). Courts in this Circuit are split on the question of whether an individual defendant can be held liable for aiding and abetting discrimination by an employer even when the individual defendant's actions serve as the predicate for the employer's liability. See, e.g., Murtha v. New York State Gaming Comm'n, No. 17-CV-10040 (NSR), 2019 WL 4450687, at *18 (S.D.N.Y. Sept. 17, 2019) (discussing alternative approaches).
The Court agrees with those courts that have found liability can be imposed on an individual defendant under such circumstances as long as the employer's conduct has also been found to be discriminatory under the NYSHRL. See Ahmad v. New York City Health & Hosps. Corp., No. 20-CV-00675 (PAE), 2021 WL 1225875, at *13 (S.D.N.Y. Mar. 31, 2021) (“The Second Circuit has held that a co-worker who actually participates in the conduct giving rise to a discrimination claim [can] be held liable under the NYSHRL . . . even where [an individual defendant's] actions serve as the predicate for the employer's vicarious liability, so long as the employer's conduct has also been found to be discriminatory under the NYSHRL.”); see also Emanuel v. Gap, Inc., No. 19-CV-03617 (PMH), 2023 WL 5211007, at *14 (S.D.N.Y. Aug. 14, 2023); Bianchi v. Green, No. 18-CV-00619 (GLS) (DJS), 2023 WL 5507429, at *8 (N.D.N.Y. Aug. 25, 2023); Fierro v. City of New York, No. 20-CV-09966 (GHW), 2022 WL 428264, at *13 (S.D.N.Y. Feb. 10, 2022); Campo v. City of New York, No. 19-CV-04364 (NGG) (SJB), 2022 WL 970730, at *23 (E.D.N.Y. Mar. 31, 2022); but see Baptiste v. City Univ. of New York, No. 22-CV-02785 (JMF), 2023 WL 4266914, at *6 (S.D.N.Y. June 29, 2023).
The Court finds that Plaintiff plausibly has alleged a claim against Defendant Burgos for aiding and abetting discrimination. As set forth in Discussion Section I(A), supra, Plaintiff plausibly alleges that Defendant Burgos directly participated in the conduct giving rise to a hostile work environment based on race. Accordingly, I recommend that the motion to dismiss the aiding and abetting claim based be denied as to Defendant Burgos. However, the Court finds that Plaintiff has not plausibly alleged a claim for aiding and abetting against Defendant Bridgewater. At most, Plaintiff alleges that Defendant Bridgewater failed to take remedial action (see, e.g., Am. Compl. ¶¶ 47), but Plaintiff does not plausibly allege that Defendant Bridgewater shared an intent to discriminate. See Desius v. BWW Res. LLC, No. 23-CV-06053 (DGL), 2023 WL 3746336, at *5 (W.D.N.Y. June 1, 2023) (allegations that individual defendant did not take action against alleged harasser not enough to render her liable as aider and abettor under NYSHRL).
To the extent Plaintiff asserts NYSHRL claims against Defendant Burgos based on gender and disability discrimination, Defendants do not address those claims in their motion to dismiss and, therefore, the Court does not address them herein. With respect to Defendant Bridgewater, however, because the only allegations in the Amended Complaint regarding gender or disability discrimination pertain to Defendant Burgos, the Court recommends dismissing the NYSHRL claim against Defendant Bridgewater in its entirety.
C. Discrimination Claims Under NYCHRL (Eleventh Through Thirteenth Causes Of Action)
In the Eleventh and Twelfth Causes of Action, Plaintiff asserts discrimination claims against Defendant Burgos under the NYCHRL under theories of both direct liability and aiding and abetting (Am. Compl. ¶¶ 214-38), and in the Thirteenth Cause of Action, asserts a discrimination claim against Defendant Bridgewater under the NYCHRL for aiding and abetting discrimination by Calientes/Q4. (Id. ¶¶ 239-51.)
The NYCHRL makes it “an unlawful discriminatory practice for an employer or an employee or agent thereof, because of the [protected characteristic] of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.” N.Y.C. Admin. Code § 8-107(1)(a). “A court must construe all provisions of the NYCHRL broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Perez v. Y & M Transportation Corp., 219 A.D.3d 1449, 1451 (2d Dep't 2023) (internal quotation marks omitted). “Courts must analyze NYCHRL claims separately from any federal law claims and should construe the NYCHRL ‘liberally for the accomplishment of the uniquely broad and remedial purposes thereof.'” Bueno, 2022 WL 95026, at *8 (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013)). A plaintiff need only show that she was “treated . . . less well, at least in part for a discriminatory reason.” Khwaja v. Jobs to Move Am., No. 19-CV-07070 (JPC), 2021 WL 3911290, at *3 (S.D.N.Y. Sept. 1, 2021) (quoting Mihalik, 715 F.3d at 110 n.8). Thus, under the NYCHRL, “[t]he standards for discrimination and hostile work environment are the same.” Raji v. Societe Generale Ams. Sec. LLC, No. 15-CV-01144 (AT) (JLC), 2018 WL 1363760, at *7 (S.D.N.Y. Feb. 28, 2018).
Under the NYCHRL, unlike the NYSHRL, direct liability is not limited to employers. See Everett, 2023 WL 5629295, at *11 (noting that NYCHRL extends to employees). However, “the employee must have acted with or on behalf of the employer in hiring, firing, paying, or in administering the terms, conditions or privileges of employment - in other words, in some agency or supervisory capacity.” Kwong v. City of New York, 204 A.D.3d 442, 445-46 (1st Dep't 2022), leave to appeal dismissed, 38 N.Y.3d 1174 (2022). Similar to the NYSHRL, it also is “an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter, or to attempt to do so.” N.Y.C. Admin. Code § 8107(6). Thus, employees “may incur liability only for their own discriminatory conduct, for aiding and abetting such conduct by others, or for retaliation against protected conduct.” Everett, 2023 WL 5629295, at *11 (quoting Bloomberg, 36 N.Y.3d at 459).
Because I find that Plaintiff plausibly has alleged a claim against Defendant Burgos under the more stringent standard of Section 1981, I also find that she plausibly has alleged a claim against Defendant Burgos under the NYCHRL. However, with respect to Defendant Bridgewater, the Court again finds that Plaintiff has not plausibly alleged discriminatory intent. See Everett, 2023 WL 5629295, at *13 (dismissing NYCHRL aiding and abetting claim because plaintiff had not alleged that individual defendant “shared the intent or purpose of any principal actor”).
The Court notes that Plaintiff appears to assert claims against Defendant Burgos for direct liability and aiding and abetting liability in the alternative. (Am. Compl. ¶ 226.) The Court need not determine at this stage which of these claims is proper. See Fellah v. City Univ. of New York, No. 20-CV-06423 (JPC), 2022 WL 4619902, at *8 (S.D.N.Y. Sept. 30, 2022) (deferring until after discovery question of whether individual defendant could be found directly liable as an “employee” under section 8-107(1)(a) or as an “aider-and-abettor” under section 8-107(6)).
For the same reasons set forth in footnote 9 above, the Court declines to consider any separate claim against Defendant Burgos for aiding and abetting gender and/or disability discrimination under the NYSHRL, but recommends that any such claims against Defendant Bridgewater be dismissed.
D. Retaliation Claim Under NYCHRL (Fifteenth Cause Of Action)
In the Fifteenth Cause of Action, Plaintiff asserts a retaliation claim under the NYCHRL against Defendant Burgos alone. (Am. Compl. ¶¶ 262-71.)
The NYCHRL's definition of retaliation is broader than its federal and state counterparts. See Lettieri v. Anti-Defamation League Found., No. 22-CV-09889 (PAE), 2023 WL 5152447, at *5 (S.D.N.Y. Aug. 10, 2023). Under the NYCHRL, it is “an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate . . . in any manner against any person because such person has[,]” inter alia, “opposed any practice forbidden under this chapter.” N.Y.C. Admin. Code § 8-107(7). “[T]o prevail on a retaliation claim under the NYCHRL, the plaintiff must show that she took an action opposing her employer's discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.” Mihalik, 715 F.3d at 112 (internal quotation marks and citations omitted). “[O]pposing any practice can include situations where a person, before the retaliatory conduct occurred, merely made clear her disapproval of the defendant's discrimination by communicating to him, in substance, that she thought his treatment of the victim was wrong.” Lettieri, 2023 WL 5152447 at *6 (quoting Mihalik, 715 F.3d at 112) (alterations omitted).
The Court finds that Plaintiff has not plausibly alleged a retaliation claim under the NYCHRL. Plaintiff alleges only that Defendant Burgos retaliated by making offensive comments after Plaintiff was terminated. (Am. Compl. ¶¶ 65-69.) This is not enough to plausibly allege that a reasonable person would be deterred from opposing discriminatory action.
E. Leave To Amend
The Court recommends granting Plaintiff leave to replead the dismissed claims. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“It is the usual practice upon granting a motion to dismiss to allow leave to replead.”).
CONCLUSION
For the reasons set forth above, it is respectfully recommended that the Individual Defendants' motion to dismiss be GRANTED IN PART and DENIED IN PART. Specifically, I recommend that Plaintiff's Section 1981 claim against Defendant Bridgewater based upon a hostile work environment be dismissed; that Plaintiff's Section 1981 claim against both Defendants based upon termination and retaliation be dismissed; that Plaintiff's NYSHRL and NYCHRL claims against Defendant Bridgewater be dismissed; and that Plaintiff's NYCHRL claim against Burgos based upon retaliation be dismissed. I further recommend that Plaintiff be granted leave to amend.
For the sake of clarity, if my recommendation is adopted, all claims against Defendant Bridgewater will be dismissed, and only the following claims against Defendant Burgos will remain: Fifth Cause of Action under Section 1981 (based upon hostile work environment only), Eighth Cause of Action under NYSHRL; and Eleventh and Twelfth Causes of Action under NYCHRL.
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NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1). Any requests for an extension of time for filing objections must be addressed to Judge Rearden.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).