357 F. Supp. 3d 276
S.D. Ill.2019Background
- Plaintiff Jenny Chau, a California resident and former colleague of defendant Ryan Donovan, alleges Donovan used his position at Granger Management to solicit sex in exchange for investment or a job and sexually assaulted her in April and October 2017.
- Chau sought a Granger investment in her fund and later discussed employment; Donovan allegedly promised hiring influence and specific pay, then withdrew the offer after sexual refusals.
- Alleged misconduct includes intoxication, unwanted touching, groping, digital penetration, masturbation next to Chau, persistent sexual propositions tied to funding or hiring, and post-assault communications.
- Chau brought state-law claims: assault, battery, IIED, NIED, NYSHRL and NYCHRL discrimination/retaliation against Donovan; vicarious liability and NYCHRL employer liability against Granger.
- Donovan moved to dismiss IIED, NIED, and NYSHRL/NYCHRL claims (seeking dismissal except assault and battery); Granger moved to dismiss vicarious liability and NYCHRL claims against it.
- Court allowed assault, battery, IIED, NYCHRL/NYSHRL (except NYSHRL §296(6) aiding/abetting), and NYCHRL claims against Granger to proceed; dismissed NIED and vicarious liability theory against Granger and dismissed NYSHRL aiding-and-abetting claim against Donovan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether nonresident Chau sufficiently alleged NYSHRL/NYCHRL "impact" in NY/NYC | Chau: job would have been in NYC; denial affected NYC employment terms | Donovan/Granger: Chau lived in CA and had no NYC impact | Held: Impact satisfied because alleged position and adverse action would have affected employment in NYC |
| Whether Donovan is individually liable under NYSHRL §296(1) or §296(6) | Chau: Donovan exercised hiring/salary control and participated in discriminatory conduct | Donovan: Not an "employer"; cannot be liable as aider/abettor for his own acts | Held: §296(1) claim allowed (sufficient factual allegations Donovan had supervisory/employer control); §296(6) aiding/abetting dismissed as impermissible to impose aiding liability for one defendant's own acts alone |
| Whether Chau stated IIED and NIED claims | Chau: persistent sexual pressure, assaults, PTSD and treatment show severe distress and causation | Donovan: IIED duplicative of battery; NIED requires special duty and cannot be based on intentional acts | Held: IIED allowed (allegations beyond battery support extreme/outrageous conduct and causation); NIED dismissed (no special duty and allegations are intentional not negligent) |
| Whether Granger is vicariously liable for Donovan's torts or liable under NYCHRL | Chau: Donovan was a principal/supervisor; informal hiring discussions bind employer; NYCHRL §8-107 can impute supervisor acts to employer | Granger: Conduct was personal, outside scope of employment; NY law does not adopt Title VII agency principles to impose liability for out-of-scope torts | Held: Vicarious liability (respondeat superior) dismissed — sexual misconduct alleged was personal and not within scope of employment; NYCHRL failure-to-hire and supervisory-imputation claims against Granger survive (plausible qualifications, informal application, and Donovan alleged as managerial agent) |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading plausibility standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must state plausible claim)
- Patrowich v. Chem. Bank, 63 N.Y.2d 541 (individuals not employers absent ownership or control over personnel decisions)
- Feingold v. New York, 366 F.3d 138 (supervisor as employer when participating in discriminatory conduct)
- Tomka v. Seiler Corp., 66 F.3d 1295 (aiding-and-abetting theory requires actual participation in discriminatory conduct)
- Riviello v. Waldron, 47 N.Y.2d 297 (factors for scope-of-employment / respondeat superior analysis)
- Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (agency principles in Title VII context)
- Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102 (NYCHRL substantive standard)
- Griffin v. Sirva Inc., 835 F.3d 283 (NYSHRL provides aiding-and-abetting liability)