Opinion
01 CIV. 2736 (DLC).
February 13, 2002.
Neil Gronowetter, Law Offices of Tom Stickel, Bronx, New York, For Plaintiff.
Arthur J. Robb, Clifton Budd DeMaria, LLP, New York, NY., For Defendant Flintlock Construction.
OPINION AND ORDER
Plaintiff Norma Varela ("Varela") brought this action against defendants Flintlock Construction, Inc. ("Flintlock"), Andrew Weiss ("Weiss") and Gregory Steck ("Steck"), alleging sexual harassment, unlawful discharge, and discrimination on the basis of gender and race, in violation of federal and state law. Defendant Flintlock moves for an order pursuant to Rule 12(c), Fed.R.Civ.P., granting it judgment on the pleadings and dismissing the complaint in its entirety. For the reasons that follow, the motion is denied.
BACKGROUND
Varela first filed this action in New York State Supreme Court, Bronx County, in June of 1994, alleging that defendants Flintlock and Steck sexually harassed her, unlawfully discharged her, and discriminated against her on the basis of gender and race, in violation of federal and state law. Plaintiff filed an amended complaint on March 7, 2001, in which she added additional causes of action under state law, and named Weiss as a defendant. Weiss filed a notice of removal to this Court on March 30, 2001. In an Opinion rendered on June 26, 2001, this Court denied plaintiff's motion to remand the action to State Court, concluding that the removal petition was timely.
Only one defendant remains in this action. Defendant Steck has never been served. Based upon a recent request by the plaintiff, all causes of action against defendant Weiss were dismissed with prejudice. Accordingly, the only defendant remaining in the action and moving for judgment on the pleadings is Flintlock.
The allegations in the complaint include the following. Varela was employed by Flintlock, a foreign corporation authorized to do business in New York and having its principal place of business in Greenwich, Connecticut, from February 1, 1992 until April 7, 1993. Defendant Weiss was at all relevant times the son of the Chief Executive Officer of Flintlock, and defendant Steck was at all relevant times an employee of Flintlock. Both Weiss and Steck worked at an employment site in Brooklyn, New York.
Varela alleges that Steck subjected her to "a tremendous variety of on-the-job forms of outrageous sexual harassment" of which Flintlock employees and defendant Weiss were aware. This sexual harassment is alleged to have included verbal "proportions" [sic] and physical contact, as well as repeated attempts to kiss the plaintiff and repeated requests for "sexual favors." Plaintiff alleges that these actions embarrassed and degraded her "to the point of inflicting severe emotional trauma."
Varela also alleges that after "years of good and faithful service" to Flintlock, she was passed over for promotions and subsequently "wrongfully discharged" in April of 1993. She further alleges that the defendants "conspired to cover up" the sexual harassment and wrongful discharge by "falsely accusing her of misconduct."
The plaintiff has agreed to the dismissal of her negligent retention and Title VII claims. The remaining claims are for unlawful discharge, "sexual harassment," and a "conspiracy to cover-up" based on the false accusations that the plaintiff was engaged in misconduct. Flintlock now moves for judgment on the pleadings, asserting that (1) New York State is an employment at will state which does not recognize a cause of action for unlawful discharge; (2) plaintiff has failed to state a claim of sexual harassment; and (3) New York law does not recognize conspiracy as an independent tort, and plaintiff has failed to allege any viable underlying tort.
With the dismissal of the Title VII claim, and in the apparent absence of diversity jurisdiction, this Court's exercise of jurisdiction over the remaining state law claims is an exercise of supplemental jurisdiction. Because the agreement to dismiss the Title VII cause of action occurred during the pendency of this motion, it is proper that this Court retain jurisdiction at least until a decision is rendered on the pending motion. See, e.g., Parker v. Della Rocco, 252 F.3d 663, 666 (2d Cir. 2001) ("district court may, at its discretion, exercise supplemental jurisdiction over state law claims even where it has dismissed all claims over which it had original jurisdiction," but "it cannot exercise supplemental jurisdiction unless there is first a proper basis for original federal jurisdiction"); Mauro v. Southern New England Telecommunications, Inc., 208 F.3d 384, 388 (2d Cir. 2000) (appropriate to retain jurisdiction over state claim following dismissal of federal claim where declining jurisdiction would further "neither fairness nor judicial efficiency").
DISCUSSION
The standard for evaluating a motion for judgment on the pleadings under Rule 12(c), Fed.R.Civ.P., is the same as that under Rule 12(b)(6), Fed.R.Civ.P. Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). A court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In considering the motion, the court must "accept as true all allegations in the complaint," Hayden v. County of Nassau, 180 F.3d 42, 47 (2d Cir. 1999), and "draw all reasonable inferences in the plaintiff's favor."Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The court can dismiss the claim only if, assuming all facts alleged to be true, the plaintiff still fails to plead the basic elements of a cause of action.
A. Unlawful Discharge
New York does not recognize the tort of wrongful discharge. Lobosco v. New York Telephone Co., 96 N.Y.2d 312, 316 (2001); DePetris v. Union Settlement Association, Inc., 86 N.Y.2d 406, 410 (1995); Murphy v. American Home Products Corp., 58 N.Y.2d 293, 300 (1983); see also Rooney v. Tyson, 127 F.3d 295, 296-97 (2d Cir. 1997). Absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will that may be freely terminated by either party at any time for any reason or even for no reason. Lobosco, 96 N.Y.2d at 316. There is no exception for firings that violate public policy, such as "discharge for exposing an employer's illegal activities." Id.
The parties have not addressed what law applies in this case, but they have applied New York law in their briefs and thereby have consented to its application here. See American Fuel Corp. v. Utah Energy Development Co., 122 F.3d 130, 134 (2d Cir. 1997); Mentor Ins. Co. v. Brannkasse, 996 F.2d 506, 513 (2d Cir. 1993) ("[I]n the absence of a strong countervailing public policy, the parties to a litigation may consent by their conduct to the law to be applied.") (citing Walter E. Heller Co. v. Video Innovations, Inc., 730 F.2d 50, 52 (2d Cir. 1984)).
There is no indication in the complaint that plaintiff's employment was for a fixed duration. Nonetheless, some legislative inroads have been made into the New York at will employment doctrine. For example, the New York State Human Rights Law, Executive Law § 290 et seq. ("Human Rights Law"), permits an employee to state a cause of action for retaliatory discharge. Id. at § 296(e).
To state a claim of retaliation under the Human Rights Law, the plaintiff must allege that (1) she has engaged in activity protected by Executive Law § 296; (2) her employer was aware that she participated in the protected activity; (3) she suffered from a disadvantageous employment action based upon her activity; and (4) there is a causal connection between the protected activity and the adverse action taken by her employer. Pace v. Ogden Services Corp., 692 N.Y.S.2d 220, 223-24 (3d Dep't 1999); see also Gregory v. Daly, 243 F.3d 687, 700 (2d Cir. 2001) (Title VII retaliation claim); Dooner v. Keefe Bruyette Woods, Inc., 157 F. Supp.2d 265, 284 (S.D.N.Y. 2001) (applying Title VII framework to Section 296 retaliation claim).
Although the Human Rights Law is not specifically mentioned in the complaint, plaintiff has alleged sufficient facts to state a cause of action under this statute. Varela has alleged that she complained to Flintlock about her alleged harassment by Steck, and that Flintlock's managers and supervisors learned and were aware of the alleged conduct. Plaintiff has also alleged a disadvantageous employment action, including the termination of her employment, and sufficient facts from which to infer a causal connection between the protected activity and the adverse employment action. Accordingly, Flintlock's motion to dismiss plaintiff's cause of action for unlawful discharge is denied.
B. Sexual Harassment
Varela has sufficiently alleged a claim for sexual harassment under the Human Rights Law. Claims under the Human Rights Law are evaluated under the same framework used to assess Title VII claims. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000). A plaintiff establishes a claim for hostile environment sexual harassment if she demonstrates "harassment that was sufficiently severe or pervasive to alter the conditions of her employment, creating an abusive working environment." Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001); see also Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d Cir. 2001). A single incident, if severe enough, can establish a hostile work environment. Raniola v. Bratton, 243 F.3d 610, 620 (2d Cir. 2001). "Isolated incidents or episodic conduct" that are not sufficiently severe are not actionable unless they are repeated and continuous. Richardson v. New York State Dep't of Correctional Services, 180 F.3d 426, 436 (2d Cir. 1999). In determining whether a work environment is sufficiently hostile or abusive, the Court must look at all 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." Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 75 (2d Cir. 2001) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). In order to hold an employer liable under New York law for a hostile work environment where the plaintiff is harassed by a low-level supervisor or a co-employee, the plaintiff must establish that "upper-level supervisors had knowledge of the conduct and ignored it."Vitale v. Rosina Food Products, Inc., 727 N.Y.S.2d 215, 218 (4th Dep't 2001); see also Ferris, 277 F.3d at 136 (Title VII).
Based upon the allegations in the complaint, which identify Steck as an "employee" of Flintlock and as a "job supervisor," the standard governing conduct by a low level supervisor or co-employee is appropriate.
Varela has described sufficient harassment by one of her co-workers, defendant Steck, to state a cause of action for violation of the Human Rights Law. Varela has also alleged that she complained to Flintlock about Steck's conduct. Although Varela does not specify when she lodged her complaint(s), she has alleged that the harassment took place up until she was fired on April 7, 1993, and that she was fired in retaliation for her complaint(s). This allegation is sufficient to raise an inference that her complaint(s) were made during the harassment.
Accordingly, because plaintiff has adequately alleged a violation of the Human Rights Law, defendant's motion to dismiss her sexual harassment claim is denied.
C. Conspiracy to Cover Up
With the exception of its argument that Varela's conspiracy claim cannot lie in the absence of an underlying viable tort, Flintlock has not addressed any other potential infirmity with the conspiracy claim. Because the complaint adequately alleges an underlying tort, the defendant's argument is rejected.
CONCLUSION
Defendant Flintlock's motion for judgment on the pleadings is denied.
SO ORDERED: