Opinion
INDEX NO. 110024/09
01-18-2013
JESSICA POOLT, Plaintiff, v. DAVID H. BROOKS, JEFFREY BROOKS, BULLETPROOF ENTERPRISES INC., PERFECT WORLD PARTNERS, LLC, PERFECT WORLD ENTERPRISES, L.L.C., Defendants.
HON. , J.:
Defendants move for summary judgment pursuant to CPLR 3212 dismissing (i) the first, second, third, fourth, fifth, sixth, seventh and ninth causes of action against Jeffrey Brooks ("Jeffrey") and Bulletproof Enterprises, Inc. ("Bulletproof"), and (ii) all causes of action against Perfect World Partners, LLC and Perfect World Enterprises, L.L.C. (collectively, "Perfect World").
Although defendants' supporting memorandum and reply affirmation seek dismissal of the eighth cause of action against Jeffrey, the notice of motion does not.
Plaintiff cross-moves pursuant to CPLR 3212 for summary judgment on her complaint against Bulletproof and Jeffrey's brother, David H. Brooks ("David").
Bulletproof is a large horse breeding and racing company owned by Jeffrey, who operated the business from apartment 19-A at 200 East 64th Street in Manhattan. David owned two businesses, a hedge fund and his own horse racing business (Perfect World), which he ran from apartment 19-C in the same building. In April 2009, Jeffrey hired plaintiff to work for Bulletproof as a bookkeeper. She worked there for two weeks, and then did not go back or even call to quit.
Instead, alleging that David was her boss and he sexually harassed her to such an extent she could not return to work even though she needed the money (complaint, ¶ 39), plaintiff brought the instant action for sexual harassment, constructive discharge and infliction of emotional distress against the two Brooks brothers and their respective companies.
Based on her two-week employment, plaintiff's nine-count complaint (defendants' exhibit C) seeks: (i) a judicial declaration that defendants violated Executive Law § 296 and Admin Code § 8-107 because they "harassed, discriminated against, constructively discharged, and retaliated against [p]laintiff of the basis of sex"; (ii) "past and future" lost wages and benefits and "back pay and front pay"; (iii) "compensatory damages for mental, emotional and physical injury, distress, pain and suffering and injury to reputation [a claim not otherwise alleged in the complaint]"; (iv) punitive damages; (v) three days of unpaid wages; and, (vi) "attorney's fees, costs, and [litigation] expenses."
"It is declared policy of the State to afford every individual within this State 'an equal opportunity to enjoy a full and productive life and that the failure to provide such equal opportunity ... because of discrimination ... not only threatens the rights and proper privilege of its inhabitants but menaces the institutions and foundation of a free democratic state and threatens the peace, order, health, safety and general welfare of the state and its inhabitants'" (City of Schenectady v State Division of Human Rights, 37 NY2d 421, 428 [1975], rearg den 38 NY2d 856 [1976], citations omitted). The abuse of the anti-discrimination laws enacted in furtherance of this policy, by unscrupulous plaintiffs who take advantage of laws affording vital protection to society by filing frivolous - sometimes even mendacious - claims thereunder for personal financial gain, is just as much of a threat. At a discrimination trial, it is the job of the jury to decide whether a plaintiff's claim is meritorious or frivolous. When a party, usually the defendant, moves for summary judgment, it is asking the court to make that determination instead. Courts are not infallible. In undertaking such a task, a court should be mindful to prevent errors which could result in the dismissal of a worthy claim, even if it means risking an unworthy claim proceeding to trial. In other words, it must err on the side of the plaintiff. Toward this aim, many rules and standards have evolved for the court to follow.
APPLICABLE STANDARDS
I. Summary Judgment
It is well established that on a motion for summary judgment the court is to decide only matters of law (see S.J. Capelin Associates, Inc. v Globe Manufacturing Corp., 34 NY2d 338 [1974]), accepting "as true the evidence presented by the opposing party" (Hotopp Associates, Ltd. v Victoria's Secret Stores, Inc., 256 AD2d 285 [1st Dept 1998]), drawing all reasonable inferences in favor of the non-moving party (see Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 [1st Dept 1992]), and basing its decision "on the version of the facts most favorable to" that party (McLaughlin v Thaima Realty Corp., 161 AD2d 383, 384 [1st Dept 1990]). It is the jury which shall decide questions of fact, and where "competing inferences may reasonably be drawn" they shall be drawn by the jury (Myers v Fir Cab Corp., 64 NY2d 806, 808 [1985]).
Where there is conflicting testimony, a summary judgment motion must be denied since the court may not pass on issues of credibility (Communications & Entertainment Corp. v Hibbard Brown & Company, Inc., 202 AD2d 191 [1st Dept 1994]). Since summary judgment "deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]), and should not be granted where the issue is even arguable (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], rearg den 3 NY2d 941 [1957]). "[F]actual disputes are not enough; they must relate to material issues" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 312 [2004], emphasis in original). The existence of a material issue must be established by "evidentiary proof in admissible form," not "rank speculation" (Tungsupong v Bronx-Lebanon Hospital Center, 213 AD2d 236, 237 [1st Dept 1995]). "[W]hen there is nothing more than a 'metaphysical doubt as to the material facts,' summary judgment is proper" (Pemrick v Stracher, 67 F Supp 2d 149, 160 [EDNY 1999]).
"Summary judgment should be used 'sparingly' when, as is often the case in sexual harassment claims, state of mind or intent are at issue.... However, plaintiff may not avoid summary judgment by simply declaring that state of mind is at issue.... Summary judgment applies no less to [discrimination] cases than to commercial cases or other areas of litigation, ... and plaintiff must still offer concrete evidence from which a reasonable juror could return a verdict in her favor" (Distasio v Perkin Elmer Corporation, 157 F3d 55, 61-62 [2d Cir 1998], citations omitted).
II. State Human Rights Law
"The standards relating to burden and order of proof in employment discrimination cases brought under the Human Rights Law are the same as those established by the United States Supreme Court... for cases brought pursuant to Title VII of the Civil Rights Act of 1964" (Sogg v American Airlines, Inc., 193 AD2d 153, 155-156 [1st Dept 1993], app dism 83 NY2d 846 [1994], lv den 83 NY2d 754 [1994], rearg den 83 NY2d 954 [1994]). "Thus, because both the Human Rights Law and title VII address the same type of discrimination, afford victims similar forms of redress, are textually similar and ultimately employ the same standards of recovery, federal case law in this area also proves helpful" (Forrest v Jewish Guild for the Blind, supra, 3 NY3d at 305, n 3, citations omitted).
The "level of proof a plaintiff is required to present in order to establish a prima facie case of discrimination is low" (Hili v Douglas Elliman-Gibbons & Ives, n.o.r., 1999 WL 34855568 [Sup Ct, NY Co, EJ Goodman, J, 1999], affd 269 AD2d 117 [1st Dept 2000], citing de la Cruz v NYC Human Resources Administration, Dept. of Social Services, 82 F3d 16, 20 [2d Cir 1996], mot den 519 US 805 [1996]). "However, the general rule holds and a plaintiff may not defeat a motion for summary judgment merely by relying upon 'purely conclusory allegations of discrimination, absent any concrete particulars which, if believed, would show discrimination'" (Garside v Hillside Family of Agencies, n.o.r., 2011 WL 32582, *10 [WDNY 2011]).
III. New York City Human Rights Law
Defendants' burden with respect to plaintiff's claims under the City's Human Rights Law is more onerous. "The Administrative Code's legislative history clearly contemplates that the New York City Human Rights Law be liberally and independently construed with the aim of making it the most progressive in the nation" (Farrugia v North Shore University Hospital, 13 Misc 3d 740, 745 [Sup Ct, NY Co, Acosta, J, 2006]). In 2005, unsatisfied with how courts were applying the same principles to both the state and city laws, the City Council enacted the Local Civil Rights Restoration Act ("Local Law 85"), which calls for every provision of the City's Human Rights Law to be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio v City of New York, 16 NY3d 472, 477-478 [2011]). "As a result of this revision, the City [Human Rights Law] now explicitly requires an independent liberal construction analysis in all circumstances, even where State and federal civil rights laws have comparable language" (Williams v NYC Housing Authority, 61 AD3d 62, 66 [1st Dept 2009, Acosta, J], lv den 13 NY3d 702 [2009]). Judicial interpretation of similarly worded state or federal "provisions may be used as aids in interpretation only to the extent that the counterpart provisions are viewed as a floor below which the City's Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise" (id at 66-67, citing section 1 of Local Law 85.
That intentional divergence from analogous federal and state laws created some legal confusion. Most of the significant, oft-cited decisions clearly stated that the same principles and analyses applicable to federal and state laws also governed the City's Human Rights Law (see, e.g., Forrest v Jewish Guild for the Blind, supra, 3 NY3d 295). Trial courts, navigating City waters, suddenly left rudderless by Local Law 85, either continued to apply established precedent (still good law with respect to federal and state statutes), perhaps tweaked a little (see, e.g., Santos v Brookdale Hospital Medical Center, n.o.r., 29 Misc 3d 1207(A) [Sup Ct, Kings Co, 2010] [applied state test, but held harassment need not be "severe and pervasive"]), or devised their own creative interpretation (see, e.g., Artis v Random House, Inc., 34 Misc 3d 858 [Sup Ct, NY Co, Billings, J, 2011]).
A year ago, in Bennett v Health Management Systems, Inc. (92 AD3d 29 [1st Dept 2011, Acosta, J], lv den 18 NY3d 811 [2012]), the First Department finally articulated the standards applicable to summary judgment motions to dismiss sex discrimination and harassment claims under the City's Human Rights Law. The court must hold the plaintiff to a much lower standard than the minimal standard usually applied in similar discrimination cases under federal and state law (id. at 35-36, citing McDonnell Douglas Corp. v Green, 411 US 792 [1973]). All aspects of the City's Human Rights Law "must be interpreted so as to accomplish the uniquely broad and remedial purposes of the law" (Bennett, supra, at 34-35, citing Admin Code § 8-130). The court is to consider plaintiff's ability to make out a prima facie case only in exceptional situations. "Instead, it should turn to the question of whether the defendant has sufficiently met its burden, as the moving party" (Bennett at 38-40, 45).
THE EMPLOYMENT RELATIONSHIP
The identity of plaintiff's employer is a central yet nebulous issue in the litigation at bar.
Plaintiff's claims against all the defendants other than David are premised on the contention that David was plaintiff's "boss" or "supervisor." At her deposition plaintiff was adamant that David supervised her work, and both the complaint and her deposition testimony are replete with references to David going over plaintiff's work or assigning work to her. Nonetheless, plaintiff does not dispute that she answered Bulletproof's internet advertisement for a bookkeeper, and was interviewed and hired only by Jeffrey, to work for Bulletproof. There is no evidence that David, the alleged harasser, had either an ownership interest in Bulletproof, which paid plaintiff's salary, or the power to do anything in that company. In fact, plaintiff testified that when she started work, she understood that her supervisor would be Jeffrey and that he was her boss (see plaintiff's EBT, p 27). Jeffrey testified that David had absolutely nothing to do with Bulletproof and as far as Jeffrey knew, plaintiff went into David's apartment only when Jeffrey was there and she was looking for him (see Jeffrey's EBT, pp 56-57, 78). Despite that evidence, however, plaintiff is firm in her belief that David was her supervisor.
The nature and magnitude of the brothers' respective businesses (Bulletproof and Perfect World) are somewhat ambiguous. Jeffrey testified that during plaintiff's brief tenure at Bulletproof, he was just starting to build up the business and doesn't remember how many, if any, other people were employed by Bulletproof at that time (see Jeffrey's EBT, p 21). Based on this testimony, defendants argue that they are immune from liability for sexual harassment because both the state and city human rights laws do not apply to employers with fewer than four employees (Executive Law § 292[5]; Admin Code § 8-102[5]). However, that argument is unavailing at this juncture in view of plaintiff's testimony that there were a lot of people working at Bulletproof (see plaintiff's EBT, p 25). Although discovery is complete and a note of issue has been filed, virtually no personnel or corporate documentary evidence has been presented to this court. Even less information is available about Perfect World, since David has not been deposed and has in effect been frozen out of this action because the court (Solomon, J.) precluded him from testifying at trial unless he appeared for a full EBT 30 days prior to trial (mot. seq. no. 004 decision dated 9/19/11, at exhibit 1 to cross-moving papers), which does not seem likely to occur. Jeffrey testified that David ran Perfect World out of his apartment, but it is unclear whether Perfect World had any other employees and, if so, if they also worked out of David's apartment. The complaint contains various references to other employees (presumably Bulletproof's), but plaintiff testified that she cannot remember their names or even how many there were. For all intents and purposes, this renders all potential non-party witnesses unavailable and muddies the waters about who did what for which company.
Although there is generally a subjective component to sexual discrimination claims, it usually entails the of fensiveness of the allegedly discriminatory conduct. In this court's experience, this is the first time that the identity of the plaintiff's supervisor is the subjective element, and plaintiff has not furnished any precedent of such a case. Nonetheless, the U.S. Supreme Court appears to have anticipated this situation. "If, in the unusual case, it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim's mistaken conclusion must be a reasonable one.... Apparent authority exists only to the extent it is reasonable for the third person dealing with the agent to believe that the agent is authorized" (Burlington Industries, Inc. v. Ellerth, 524 US 742, 759 [1998]). The rationality of plaintiff s belief, being a question of fact rather than law, must be determined by the jury. It is the court's role at this stage to determine if there is enough evidence for the jury to find plaintiff's belief was rational. As discussed above, for purposes of defendants' summary judgment motion the court must accept plaintiff's version of the facts as true. Plaintiff's sworn testimony constitutes evidence that David was her supervisor and that he sexually harassed her. How credible that evidence is is irrelevant at this juncture. Given David's forced silence in this litigation, plaintiff's testimony is unrebutted. Plaintiff is essentially in a default situation with respect to David - and perforce Perfect World. In other words, plaintiff must still make out a prima facie case against them at trial through competent evidence, but when it comes to "he said, she said," only she gets to speak. The fact that plaintiff's testimony is directly contradicted by Jeffrey merely raises a question of credibility for the jury to decide (see Communications & Entertainment Corp. v Hibbard Brown & Co., Inc., supra, 202 AD2d 191).
Even plaintiff's own status is uncertain. To "recover under... New York's Human Rights Law, a plaintiff must demonstrate that he or she had an employment relationship with the defendant employer" (Strauss v New York State Department of Education, 26 AD3d 67, 69 [3d Dept 2005], citing Wimmer v Suffolk County Police Dept, 176 F3d 125, 135-136 [2d Cir 1999], cert den 528 US 964 [1999] and Scott v Massachusetts Mutual Life Insurance Co., 86 NY2d 429, 433 [1995]). Here, the complaint itself suggests that whatever work, if any, plaintiff did for David and/or Perfect World was not part of plaintiff's regular work for Bulletproof, since it alleges plaintiff would "leave from work for the day at around 6:00 pm and... David... would always stop her and insist on meeting [p]laintiff in his apartment" (complaint, ¶ 28). Arguably, this would make plaintiff an after-hours volunteer for Perfect World with no right of action for employment discrimination against Perfect World (see O'Connor v Davis, 126 F3d 112, 115-116 [2d Cir 1997], cert den 522 US 1114 [1998]). Even plaintiff's relationship with Bulletproof is not clear-cut. Defendants have also argued that plaintiff was not an employee of Bulletproof but rather an independent contractor for it (see interrogatory 3 at exhibit 4 to cross-moving papers). As an independent contractor, plaintiff would not be protected under Executive Law § 296. "Executive Law § 296(1)(a) only governs discrimination in the traditional employer-employee relationship and not in the employment of independent contractors" (Murphy v ERA United Realty, 251 AD2d 469, 470 [2d Dept 1998], citing Scott v Massachusetts Mutual Life Ins. Co., supra). However, that issue was apparently not explored at the depositions and cannot be decided as a matter of law based on the evidence now before the court.
SEX DISCRIMINATION AND HARASSMENT
Plaintiff asserts claims of sexual discrimination and harassment under both the state and the City human rights laws.
The complaint alleges that plaintiff was forced to spend time in David's apartment as part of her job, and she was "very offended" by the "large pictures of various naked women" that David had in his apartment (complaint, ¶¶ 29-30). In addition, the complaint specifies two off-color comments in a work context (one in front of another employee) (id., ¶¶ 26-27) and, on plaintiff's penultimate workday, one major incident of sexual harassment involving inappropriate intimate questions, improper comments and suggestive gestures (see id, ¶¶ 31-37).
Based on these allegations, plaintiff avers that David sexually harassed her and discriminated against her and contends that the remaining defendants are vicariously liable for David's conduct.
Defendants argue that the corporate defendants cannot be held liable for discrimination because they did not condone or even know about David's conduct.
I. State law
The first cause of action in the complaint alleges that defendants violated Executive Law § 296(1) by discriminating against her because of her gender and sexually harassing her(id., ¶ 46).
The derivative liability of a corporate employer in a claim of sex discrimination based on sexual harassment under Executive Law § 296(1) is a multi-tiered concept.
"A complainant seeking relief for sexual harassment may proceed under two theories: (1) quid pro quo; and (2) hostile work environment.... Quid pro quo harassment occurs when unwelcome sexual conduct - whether sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature - is used, either explicitly or implicitly, as the basis for employment decisions affecting compensation, terms, conditions, or privileges of the complainant's employment" (Father Belle Community Center v New York State Division of Human Rights, 221 AD2d 44, 49-50 [4th Dept 1996], rearg den, n.o.r., 647 NYS2d 652 [4th Dept 1996], lv den 89 NY2d 809 [1997]). "A hostile work environment exists when 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" (Jomka v Seller Corporation, 66 F3d 1295, 1304 [2d Cir 1995], citations omitted). The standards for liability are different under each of these theories, and a further distinction is made depending on whether the alleged harasser was a supervisor or a co-employee of the plaintiff. "Under the quid pro quo sexual harassment theory corporate defendants are held strictly liable for the sexually harassing conduct of their supervisors whereas under the 'hostile environment' sexual harassment theory corporate defendants are not automatically liable for a supervisor's harassing conduct" (Bridges v Eastman Kodak Company, 822 F Supp 1020, 1024, n 3 [SDNY 1993], citing Meritor Savings Bank, FSB v Vinson, 477 US 57, 70-71 [1986] and Carrero v New York City Housing Authority, 890 F2d 569, 578-579 [2d Cir 1989]).
In the case at bar, plaintiff has not specified which theory she is relying on; indeed, she appears to be proceeding under both. Nonetheless, looking at the facts in the light most favorable to plaintiff, the court finds that there are "not sufficient allegations to sustain a claim against [her employer] under a quid pro quo harassment theory, which requires evidence that a plaintiff's reaction to unwelcome sexual conduct be used as the basis for decisions affecting her compensation or terms of employment" (Espaillat v Breli Originals, Inc., 227 AD2d 266, 268 [ 1 st Dept 1996]). Plaintiff was employed and paid by Bulletproof (see O'Connor v Davis, supra, 126 F3d at 115-116 [economic remuneration is determinative of employment status]). Plaintiff's compensation and terms of employment were controlled by Jeffrey, who even according to plaintiff, was probably unaware of David's harassment. David, plaintiff's putative supervisor, had no role in Bulletproof and no control over plaintiff's salary or terms of employment with Bulletproof, and plaintiff does not claim that he did, only that she "believed" he was her "supervisor."
To hold an employer vicariously liable under federal and state law for a supervisor's sexual harassment under a hostile environment theory, a plaintiff must first prove the existence of a hostile environment as set forth above, and then "establish that the conduct which created the hostile environment should be imputed to the employer" (Tomka v Seller Corp., supra, 66 F3d at 1305, citing Karibian v Columbia University, 14 F3d 773, 779 [2d Cir 1994], cert den sub nom Trustees of Columbia University v Karibian, 512 US 1213 [1994]) and Meritor Savings Bank v Vinson, supra, 477US at 64-65). "In Meritor, the Supreme Court declined to announce a definitive rule on employer liability, holding instead that federal courts should be guided by common law principles of agency.... [Using] Meritor's general guidance [the Second Circuit Court of Appeals] derive[d] the following rules of employer liability: if a plaintiff's supervisor is the alleged harasser, an employer will be liable if the supervisor uses his actual or apparent authority to further the harassment, or if the supervisor was otherwise aided in accomplishing the harassment by the existence of the agency relationship.... By contrast, where a low-level supervisor does not rely on his supervisory authority to carry out the harassment, or a co-employee of the plaintiff is the alleged harasser, an employer will not be liable unless the employer either provided no reasonable avenue of complaint or knew of the harassment but did nothing about it" (Tomka v Seiler Corp., supra, 66 F3d at 1305, citing Meritor Savings Bank v Vinson, supra, 477US at 72, other citations omitted; see also Espaillat v Breli Originals, supra, 227 AD2d at 267; Thompson v Lamprecht Transport, n.o.r., 2004 WL 6063732 [Sup Ct, Queens Co, 2004]).
As discussed above, it has yet to be determined if David was plaintiff's supervisor, a low-level supervisor, or any kind of supervisor at all, but under the applicable standards, for purposes of defendants' summary judgment motion the court must consider David to have been plaintiff's supervisor.
(A). Bulletproof
In this case, taking plaintiff's version of the facts as true, her job as a bookkeeper for Bulletproof, which was at best amorphously defined by Jeffrey, included doing some Perfect World accounting work for David. Under the foregoing employer liability test, since in plaintiff's eyes David had the apparent authority to supervise her, the first part of the test must be used. It is possible for a jury to apply this test and find, based solely on plaintiff's testimony and David's silence, that Bulletproof was vicariously liable for David's harassment of plaintiff.
However, even assuming that plaintiff had stated a cause of action against Bulletproof as her employer based on David being her supervisor, as discussed below, the court finds that Bulletproof has shown its entitlement to summary judgment with respect to her first cause of action for sex discrimination under the state law.
Under federal and state law, an employer vicariously liable for the discriminatory conduct of a managerial or supervisory employee may elude liability by asserting the so-called Faragher-Ellerth defense (asserted by defendants herein without naming it, as their fourth affirmative defense). For this defense to succeed, the employer must show that (i) no adverse employment action (e.g., termination) was taken as part of the sexual harassment; (ii) the employer took prompt corrective action; and, (iii) the plaintiff unreasonably failed to avail herself of "corrective opportunities provided by the employer or to avoid harm otherwise" (Zakrzewska v The New School, 14 NY3d 469,476-477 [2010], citing Faragher v City of Boca Raton, 524 US 775 [1998] and Burlington Industries v Ellerth, supra, 524 US 742). Here, Bulletproof has established the applicability of Faragher-Ellerth.
(i). Plaintiff cannot substantiate her claim of constructive discharge, and there is no evidence of any other adverse employment action. Plaintiff was not fired, she left of her own volition. "Unless conditions are beyond 'ordinary' discrimination, a complaining employee is expected to remain on the job while seeking redress" (Garside v Hillside Family of Agencies, supra, at *13, citations omitted). To state a claim for constructive discharge, plaintiff must allege facts showing that a defendant "deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable person would have felt compelled to resign."... 'Deliberate' is more than 'a lack of concern'; 'something beyond mere negligence or ineffectiveness'" (Polidori v Societe Generale Groupe, 39 AD3d 404,405-406 [1st Dept. 2007], citations omitted; Short v Deutsche Bank Securities, Inc., 79 AD3d 503, 504 ; compare Sawicka v Catena, 79 AD3d 848, 849-850 [2d Dept 2010] [defendant deliberately made the working conditions intolerable by installing a video camera in the restroom]). A prima facie case of constructive discharge cannot be made without establishing a materially adverse employment action (Messinger v Girl Scouts of USA, 16 AD3d 314 [1st Dept 2005]). Since plaintiff testified that Jeffrey did nothing to make her uncomfortable (see plaintiff's EBT, pp 50-51) and David's only motivation was to make advances on her, not force her to quit her job (see id.), she cannot show she was constructively discharged. In fact, plaintiff's inability to show she was constructively discharged alone has been held to warrant summary judgment in the employer's favor (cf. Ehmann v Good Samaritan Hospital Medical Center, 90 AD3d 985,985986 [2d Dept 2011]).
(ii) Since plaintiff deprived Bulletproof of the opportunity to take "prompt corrective action" by not informing anyone of David's harassment, she cannot show that Bulletproof "acquiesced in the discriminating conduct or subsequently condoned it" instead of taking corrective action (see Sormani v Orange County Community College, 240 AD2d 724, 725 [2d Dept 1997]). Here, there is absolutely no evidence - or even allegation - that Bulletproof knew of David's alleged harassment, much less acquiesced or condoned it, and plaintiff herself testified that she never informed her employer of the situation (see Forrest v Jewish Guild for the Blind, supra, 3 NY3d at 311-312; contrast Goering v Nynex Information Resources Company, 209 AD2d 834 [3d Dept 1994] ["an employer's calculated inaction ... may readily indicate condonation"]).
(iii) . Similarly, plaintiff unreasonably failed to avail herself of whatever corrective opportunities Bulletproof could have offered her if it had been given the chance. Plaintiff did not even resign, she just left work one day and did not return the next, and when Jeffrey called her multiple times to find out what happened, she did not return his calls (see Jeffrey's EBT; see also plaintiff's EBT pp 49-51). Under these circumstances, plaintiff cannot state a claim against Bulletproof even assuming arguendo that David was her supervisor (see ibid.; see also Torres v Pisano, 116 F3d 625 [2d Cir 1997], cert den 522 US 997 [1997] [An employer cannot be held liable for failure to remedy a claim of hostile work environment where the employee has asked the employer to not act and keep the matter confidential]).
(B). Perfect World
Plaintiff is staunch in her belief that David was her supervisor despite the evidence - or lack thereof. Plaintiff's theory of liability against Perfect World is that since she did work for David, and David owned Perfect World and had nothing to do with Bulletproof (see Jeffrey's EBT, pp 25-26), she must have done that work for Perfect World, which is thus her 'joint employer' along with Bulletproof. According to plaintiff, since David was her supervisor, Perfect World is also vicariously liable for David's harassment and David is personally liable to plaintiff for his discriminatory conduct by virtue of his ownership interest in Perfect World.
For purposes of defendants' summary judgment motion with respect to this cause of action, plaintiff must be deemed to be Perfect World's employee. Given the standards applicable to summary judgment and sexual harassment claims, the court will not summarily dismiss this cause of action against Perfect World.
"An employer is considered to have notice of sexual harassment if the employer - or any of its agents or supervisory employees - knew or should have known of the conduct.... An official's knowledge will be imputed to an employer when: (A) the official is at a sufficiently high level in the company's management hierarchy to qualify as a proxy for the company; or (B) the official was charged with a duty to act on the knowledge and stop the harassment; or (C) the official is charged with a duty to inform the company of the harassment" (Distasio v Perkin Elmer Corp., supra, 157 F3d at 63-64, citing Torres v Pisano, supra, 116 F3d at 636-637). Perfect World appears to meet this test since its owner/agent, and the only person with the authority to correct discriminatory practices, was David, the alleged harasser. Thus, the Faragher-Ellerth defense available to Bulletproof is unavailing to Perfect World. This does not mean that plaintiff has shown entitlement to summary judgment against Perfect World or David. There are too many unanswered factual questions, primarily about the employment relationship, which should be resolved only by a jury.
(c). Jeffrey and David
Individual liability is one of the few points on which the state Human Rights Law differs from Title VII. "It is well settled that individual defendants are not subject to liability under Title VII" (Bancroft v Farino, n.o.r., 2012 WL 4616964, *2 [SDNY 2012], citing Tomka v Seller Corp., supra, 66 F3d at 1313; Strauss v New York State Dept. of Education, supra, 26 AD3d at 72). New York's Court of Appeals has held that individuals may be liable under the State Human Rights Law only if they have an "ownership interest or any power to do more than carry out personnel decisions made by others" (Patrowich v Chemical Bank, 63 NY2d 541, 542 [1984]). However, the court did not specify under which subsection of Executive Law § 296 that individual would be liable (id.; Petrosky v New York State Department of Motor Vehicles, 72 F Supp 2d 39, 64-65 [NDNY 1999]). Subsequent courts have interpreted Patrowich broadly and allowed individuals to be sued for discrimination (see Kaiser v Raoul's Restaurant Corporation, 72 AD3d 539 [1st Dept 2010]).
Jeffrey has an ownership interest in Bulletproof, plaintiff's primary employer, but since he is not the alleged harasser and the discrimination claim against Bulletproof cannot be sustained, he cannot be held individually liable for sexual harassment.
There is no evidence that David, the alleged harasser, has either an ownership interest in Bulletproof, which paid plaintiff's salary, or the power to do anything in that company; he does, however, have an ownership interest in Perfect World. The theory is that if an individual has an ownership interest in the corporate employer, managerial responsibilities and the authority to make personnel decisions including hiring and firing, he is liable as an employer even though he is an individual rather than a corporate entity (see Gallegos v Elite Model Management Corp., 28 AD3d50, 60 [1st Dept 2005]).
II. City law
In the fourth cause of action plaintiff alleges that defendants violated Section 8-107[l](a) of the City's Administrative Code "by actually and constructively discharging, creating and maintaining discriminatory working conditions, and otherwise discriminating against [her] because of her gender and sexual harassment" (¶ 56).
The court notes that from the evidence before it, there is no indication that plaintiff has complied with the service requirements of Admin Code § 8-502(c) [plaintiff in action brought wholly or partially pursuant to Admin Code § 8-107(1) [a] must serve both the city commission on human rights and the corporation counsel with a copy of the complaint within 10 days of action's commencement]. The service specified in § 8-502(e) is "a condition precedent to maintaining a valid cause of action under title 8 of the Administrative Code" (Bernstein v 1995 Associates, 217 AD2d 512, 515 [1st Dept 1995]).
Defendants argue that since plaintiff admitted that she left Bulletproof voluntarily and testified that she made no complaints about the harassment, she cannot sustain these claims.
Under the liberal standards imposed by the city Council, a claim of sexual harassment under the city's Human Rights Law "lies when it is 'proven by a preponderance of the evidence that... the plaintiff has been treated less well than other employees because of her gender,'" a determination which "is ordinarily one for the trier of fact" to make (Short v Deutsche Bank Securities, supra, 79 AD3d at 505-506, citing Williams v NYCHA, supra, 61 AD3d 62). The only proviso is that the allegedly harassing conduct must be "[some]thing more than non-actionable petty slights and minor inconveniences" (id. at 506). A few comments "allegedly made within one week of the start of plaintiff's work suffice to show sexual harassment" (Santos v Brookdale Hospital Medical Center, supra, 29 Misc 3d 1207(A) at *2).
As one would expect, defendants' summary judgment burden with respect to this claim is more onerous than under the state law. As discussed above, plaintiff's obligation to make out a prima facie case is not just minimal but virtually irrelevant. Whether or not a prima facie case can be made, a moving defendant must show "that, based on the evidence before the court and drawing all reasonable inferences in plaintiff's favor, no jury could find defendant liable under any of the evidentiary routes - McDonnell Douglas, mixed motive, 'direct' evidence, or some combination thereof (Bennett v Health Management Systems, Inc., supra, 92 AD3d at 38-40, 45). This is a particularly difficult burden to meet since Admin Code § 8-107[l](a) is to be construed more broadly and as more remedial than corollary federal or state laws, and does not require the alleged sexual harassment to be "severe or pervasive" to be actionable (Williams v NYCHA, supra, 61 AD3d 62, 73-74, citing Meritor Savings Bank v Vinson, supra, 477US at 67 and Admin Code § 8-130). More important in this case, the Faragher-Ellerth defense discussed above which relieves Bulletproof of liability pursuant to Executive Law § 296, is not available as a defense to claims brought under Admin Code § 8-107(l)[a] (Zakrzewska v The New School, supra, 14 NY3d 469). To avoid liability under § 8-107[ 1 ](a), defendants must "prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences" (Williams v NYCHA, supra, 61 AD3d at 80). They have not done so.
Furthermore, with respect to Perfect World, this claim cannot be summarily dismissed because plaintiff's sexual harassment claim against it under state law is being sustained herein (see Williams, supra, at 66-67).
Since "individual defendants may also be held liable under the City [Human Rights Law]"(McRedmondv Sutton Place Restaurant and Bar, Inc., 95 AD3d 671, 673 [1st Dept 2012]), this claim will also withstand summary judgment against the Brooks brothers.
RETALIATION
Plaintiff asserts claims of retaliation under both state and city human rights laws.
As with plaintiff's fourth cause of action, defendants argue that the claims are not tenable because plaintiff admitted at her deposition that she was not fired but rather left voluntarily and that she made no complaints about the alleged discrimination.
I. State law
The second cause of action alleges that defendants violated Executive Law § 296(7) by "discharging, retaliating, and otherwise discriminating against" plaintiff "because of [her] opposition to the unlawful employment practices of plaintiff's employer" (complaint, ¶ 50).
"[I]t is unlawful to retaliate against an employee for opposing discriminatory practices.... In order to make out this claim, plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action" (Forrest v Jewish Guild for the Blind, supra, 3 NY3d at 312-313; Legnani v Alitalia LineeAeree Italians, SPA, 173 F3d 845 [table; text at 1999 WL 132178] [2d Cir 1999]). "[P]laintiff bears the burden of proof [on each of these elements] and must ultimately establish [them] by a preponderance of the evidence" (Garside v Hillside Family of Agencies, supra, 2011 WL 32582 at * 14).
As alleged in the complaint, the activity which subjected plaintiff to retaliation was "her refusing to yield to [David's] sexual advances and ... objecting to his sexual comments" (complaint, ¶ 38). This is not the type of protected activity contemplated by the law. Whatever protest plaintiff made to David cannot be deemed a complaint about his harassment since plaintiff testified that she never complained to David (see plaintiff's EBT), and plaintiff has not cited a single case where plaintiff's just saying 'no' to the alleged harasser constitutes protected activity under either Executive Law § 296(6) or Admin Code § 8-107(7). But even assuming this allegation to be adequate in meeting the first prong of the test, the court finds plaintiff cannot sustain a retaliation claim under either the state or city law because she cannot show that she suffered an adverse employment action.
A plaintiff need not suffer a change of title, a decline in income, or a reduction of benefits, in order to establish an adverse job action. What is required is a 'materially adverse change' in the terms and conditions of employment.... 'To be "materially adverse," a change in working conditions must be more than a mere inconvenience or an alteration of job responsibilities" (Curran v All Waste Systems, Inc., 213 F3d 625 [2d Cir 2000] [table; text at 2000 WL 639999, *3], citing Galabya v New York City Board of Education, 202 F3d 636, 640 [2d Cir 2000]). As discussed above, plaintiff cannot establish that she was the victim of a materially adverse employment action.
The only retaliatory act alleged in the complaint is that on April 15, 2009 (plaintiff's last day of work) David "told plaintiff to do all the accounting work that day" (complaint, ¶ 38). This is not enough to impose liability on David or any of the other defendants. A "one-time assignment to perform a task arguably within plaintiff's duties did not constitute retaliation" (Williams v NYCHA, supra, 61 AD3d at 65).
The anti-retaliation sections of both the state and city statutes (respectively, Executive Law § 296[7] and Admin Code § 8—107[7]) provide for individual liability (Fletcher v. Dakota, Inc., 99 AD3d 43 [1st Dept 2012]). However, plaintiff's evidence is insufficient to state a retaliation claim against either Jeffrey or David.
II. City law
The fifth cause of action alleges that each defendant violated Admin Code § 8-107[l](e)"by discriminating against the plaintiff because of plaintiff's opposition to the unlawful employment practices of plaintiff's employer" (¶ 60). To make out a retaliation claim under the City law (§ 8-107[7]), "the complaint must allege that: (1) [plaintiff] participated in a protected activity known to defendants; (2) defendants took an action that disadvantaged h[er]; and (3) a causal connection exists between the protected activity and the adverse action" (Fletcher v. Dakota, supra, at 51, citations omitted). This test is substantially different than the one applicable to the corresponding state law because retaliatory conduct under the City law need not rise to the level of termination or even a materially adverse change to the terms and conditions of plaintiff's employment (see Williams v NYCHA, supra, 61 AD3d at 70-71). Nonetheless, even under this minimal standard and construing § 8-107(7) broadly in favor of plaintiff (see Albunio v City of New York, supra, 16 NY3d 472), the court finds that telling a bookkeeper to do accounting work cannot be said to be an action which "disadvantaged" plaintiff.
As defendants point out, although the complaint dubs this claim a violation of § 8-107(l)[e] it uses the language of § 8-107(7) and is clearly intended to assert a cause of action pursuant to that subsection. The court will therefore ignore the incorrect nomenclature and treat this cause of action as one alleging a breach of § 8-107(7). "Plaintiff's citation... to NYC 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" (Artis v Random House, Inc., supra, 34 Misc 3d at 866).
AIDING AND ABETTING
All of plaintiff's claims against all of the defendants are based solely on the alleged actions of David (see complaint, ¶¶ 25-38). The complaint's only specific allegation against Jeffrey is that he "aided and abetted ... [David]... in committing the unlawful acts referenced [t]herein" (id., ¶ 42). How he did so is not specified in either the complaint or plaintiff's deposition testimony, which also fail to specify how any of the other defendants aided and abetted David's discriminatory conduct.
Plaintiff has asserted claims for aiding and abetting under both state and city laws. The third cause of action alleges that "[e]ach of the defendants" violated "Executive Law § 296(6) by aiding, abetting, inciting, compelling and coercing the discriminatory conduct" (complaint, ¶ 53). In the sixth cause of action plaintiff alleges that each defendant violated Admin Code § 8-107(6) "by aiding, abetting, inciting, compelling and coercing the above discriminatory, unlawful and retaliatory conduct" (¶ 63).
Defendants argue that although discovery is substantially complete, no evidence was adduced that anyone aided or abetted David's alleged discriminatory conduct. According to defendants, this, combined with plaintiff's deposition testimony that she does not know whether Jeffrey or any of the corporate defendants was aware of David's conduct or facilitated it in any way, make it impossible for plaintiff to state viable claims pursuant to these causes of action.
Section 296(6) includes "persons" in the list of who may be held liable for aiding and abetting discrimination. Combining this with Petrowich v Chemical Bank, supra, the Second Department has held that "[t]he Legislature and the Court of Appeals have determined that only employers and employee-owners or those with specified authority are subject to employment discrimination suits under the Human Rights Law" (Trovato v Air Express International, 238 AD2d 333, 334 [2d Dept 1997]). That principle does not apply in this Department. "It is now settled precedent in this Department that an individual may be held liable under Executive Law § 296(6), (7) for aiding and abetting discriminatory conduct" (D'Amico v Commodities Exchange Inc., 235 AD2d 313, 315 [1st Dept 1997]), and an individual who participates in the discriminatory conduct may be held liable for aiding discriminatory conduct even without any ownership interest (see Steadman v Sinclair, 223 AD2d 392 [1st Dept 1996], citing Peck v Sony Music Corp., 221 AD2d 157 [1st Dept 1995]). The First Department thus focuses on the individual's connection to the harassment rather than his status in the corporate employer (see Jordan v Cayuga County, n.o.r., 2004 WL 437459 [NDNY 2004]). Whereas in the Second Department it "is the employer's participation in the discriminatory practice which serves as the predicate for the imposition of liability on others [co-employees] for aiding and abetting" (Murphy v ERA United Realty, supra, 251 AD2d at 472), courts in the First Department "have found a claim for aider and abetter discrimination against a co-employee who is not an 'employer' under NYHRL § 296(1) only when such employee actually or wilfully participated in the conduct giving rise to a discrimination claim" (Perez v El Al Israel Airlines Ltd, 26 Misc 3d 1235(A), *3 [Sup Ct, NY Co, James, J, 2010]). The City's Human Rights Law also "provides that individuals may be held liable for their acts of employment discrimination" (Arena v Agip USA Inc., n.o.r., 2000 WL 264312, *3 [SDNY 2000], citations omitted).
A finding of either discrimination or retaliation by another party is essential to establishing liability for aiding and abetting under both statutes (see DeWitt v Lieberman, 48 F Supp 2d 280, 293 [SDNY 1999]). If plaintiff fails "to raise a triable issue of material fact that she was either retaliated against or discriminated againsther claims that defendants aided and abetted each other in any discrimination or retaliation cannot survive" under Executive Law § 296(6)" (Forrest v Jewish Guild for the Blind, supra, 3 NY3d at 314). Although plaintiff contends that Jeffrey aided and abetted the discrimination, she has not alleged that he (or Bulletproof or Perfect World) wilfully participated in David's sexual harassment of her. The only active participant in the harassment and discrimination alleged by plaintiff is David, who cannot be held liable. "Where no violation of the Human Rights Law by another party has been established,... an individual employee cannot be held liable for aiding or abetting such a violation. In other words ... individuals cannot be held liable under Executive Law § 296(6) for aiding and abetting their own violations of the Human Rights Law" (Strauss v New York State Dept. of Education, supra, 26 AD3d at 73, citations omitted). A sexual harasser "cannot be liable for aiding or abetting his own conduct" (Jordan v Cayuga County, supra, 2004 WL 437459 at *5, citations omitted).
In view of the foregoing, the court finds that plaintiff's third and sixth causes of action cannot be sustained against any of the defendants.
INFLICTION OF EMOTIONAL DISTRESS
The ninth cause of action alleges that defendants' "extreme and outrageous conduct" inflicted "severe emotional distress" on plaintiff (¶¶ 71-74). Unlike plaintiff's other causes of action, which are all statutory, this claim is strictly a tort.
Although in plaintiff's complaint this cause of action is asserted against all defendants, in her memorandum in opposition to defendants' motion for summary judgment she posits that the claims for infliction of emotional distress are asserted only against David. Hence, the court will deem this cause of action abandoned as against all defendants other than David.
The tort of intentional infliction of emotional distress "has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. The first element - outrageous conduct - serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff's claim of severe emotional distress is genuine" (Howell v New York Post Co., Inc., 81 NY2d 115, 121 [1993]). "Liability arises only when defendant's conduct is extreme and outrageous, measured by the reasonable bounds of decency tolerated by decent society" (Hughes v Pacienza, 35 Misc 3d 1207(A), *2 [Sup Ct, Kings Co, Rivera, J, 2012], citing Marmelstein v Kehillat New Hempstead, 11 NY3d 15 [2008]). A claim for intentional infliction of emotional distress based on sexual harassment may be sustained if the conduct is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Collins v Willcox Incorporated, 158 Misc 2d 54, 56-57 [Sup Ct, NY Co, Greenfield, J, 1992]).
"Whether the conduct complained of is outrageous is, in the first instance, for the court" (Hughes v Pacienza, supra, citing Cavallaro v Pozzi, 28 AD3d 1075 [4th Dept 2006]). In making this determination, the court is best aided by examples. An employer's giving plaintiff a hard slap on her backside and "wholly inappropriate" sexual harassment have been held to be insufficiently outrageous to establish intentional infliction of emotional distress (Arena v Agip USA Inc., supra, 2000 WL 264312 at *5, citing Jaffe v National League for Nursing, 222 AD2d 233 [1st Dept 1995], app wdn 241 AD2d 983 [1997] and Foley v Mobil Chemical Co., 214 AD2d 1003, 1005 [4th Dept 1995], rearg den, n.o.r., 1995 WL 413878 [1995]). Plaintiff primarily cites to David's "wholly inappropriate" sexual harassment and salacious taste in decorating his apartment. Given the foregoing examples, these allegations are not sufficiently outrageous to state a cause of action for intentional infliction of emotional distress. Plaintiff's contention that David's conduct was so outrageous that she could not bare to return to work, or even talk to Jeffrey about it is immaterial here. With respect to this cause of action, unlike the sexual harassment claims, the emphasis is not on plaintiff's subjective reactions to the offensive conduct, but on how outrageous the conduct is in objective terms. "To survive a motion to dismiss, a cause of action for intentional infliction of emotional distress must allege conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" (Foley v Mobil Chemical, supra, 214 AD2d at 1005).
Nor has plaintiff succeeded in asserting a viable claim for negligent infliction of emotional distress. To maintain a cause of action for negligent infliction of emotional distress in the context of a sexual harassment suit, the plaintiff must show that the harasser's conduct was such that it caused her to fear for her physical safety (Persaud v S. Axelrod Company, n.o.r., 1996 WL 11197 [SDNY 1996], citing Cucchi v New York City Off-Track Betting Corp., 818 F Supp 647, 656 [SDNY 1993]). There are no allegations of physical threats to plaintiff to support this claim.
REMAINING CLAIMS
Plaintiff has also asserted two other claims under the City's Human Rights Law.
The complaint's seventh cause of action alleges that each defendant violated Admin. Code § 8-107(19), which provides that "[i]t shall be an unlawful discriminatory practice for any person to coerce, intimidate, threaten or interfere with, or attempt to coerce, intimidate, threaten or interfere with, any person in the exercise or enjoyment of, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected pursuant to this section."
Threats are required to state a claim for violation of Admin Code § 8-107(19) (Montanez v New York City Housing Authority, 5 AD3d 314, 315 [1st Dept 2004]). If "plaintiff does not allege that any of her putative employer's supervisors or employees threatened or intimidated her or took any action besides requesting her transfer, her claim against that employer for interference with a protected right must be dismissed" (Artis v Random House, supra, 34 Misc 3d at 867). Based on the foregoing this cause of action must be dismissed against all defendants, for plaintiff does not allege that anyone threatened her.
The eighth cause of action alleges that defendants violated Admin. Code § 8-107(13), which makes it "an unlawful discriminatory practice (i) for any person to discriminate against, boycott or blacklist" members of protected categories engaged in various commercial activities..., or (ii) for any person willfully to do any act or refrain from doing any act which enables any such person to take such action" (Scott v Massachusetts Mutual Life Ins. Co., supra, 86 NY2d at 434). This section of the City's Human Rights law, commonly known as the "Arab Boycott Law" because it was enacted in 1995 to counter-balance the economic strength of the Arab OPEC nations, "is directed at curbing, in particular, types of business practices that involve the concerted use of economic means to disadvantage the trade or commercial activities of a member of a targeted group" (id at 435-436).
Plaintiff evokes § 8-107(13) as a catch-all vicarious liability provision. "Thus, although a liberal reading of this type of remedial statute is warranted for the accomplishment of its purposes..., the reading plaintiff advances would not promote the purpose of this section (id. at 436, citing City of Schenectady v State Division of Human Rights, supra, 37 NY2d at 428). Based on such clear rejection by the Court of Appeals, the court finds this cause of action should be dismissed against all defendants.
Accordingly, defendants' motion is granted only to the extent that the Clerk shall enter judgment dismissing plaintiff's first cause of action (sex discrimination under state law) against Bulletproof and Jeffrey, and dismissing the second, third, fifth, sixth, seventh, eighth and ninth causes of action in their entirety. The first cause of action against David and Perfect World and the fourth cause of action (sex discrimination under city law) against all defendants are hereby severed.
Plaintiff's cross-motion for partial summary judgment is denied in its entirety.
This decision constitutes the order of the court.
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J.S.C.