Delisi v. National Ass'n of Professional Women, Inc.
48 F. Supp. 3d 492
E.D.N.Y2014Background
- DeLisi worked for NAPW from April 2008, advancing to the Press Release Sales department before a 2013 constructive discharge.
- She alleges sexual harassment by DeMonte, including slapping and offensive names, beginning in 2011 and continuing after complaints.
- She complained to HR and to Proman and Wesser, but alleges no adequate action was taken.
- In July 2012, after a confrontation, she was demoted with a substantial pay cut and took medical leave.
- She filed an EEOC charge in July 2012, returned in January 2013, faced continued harassment, and was constructively discharged in February 2013; the only claims at issue here are against Wesser under NYSHRL.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wesser aided and abetted discrimination/retaliation under NYSHRL § 296(6). | DeLisi alleges Wesser actively participated and later retaliated. | Wesser allegedly failed to investigate; no adverse action shown. | Yes; pleaded facts show active participation and retaliation sufficiency. |
| Whether failure to investigate constitutes adverse retaliation action. | Failure to investigate after return in Jan. 2013 was retaliation for prior complaints. | Fincher controls; failure to investigate is not per se adverse action. | Distinguishable from Fincher; can be adverse if retaliatory. |
| Whether Wesser, as General Counsel, can be liable under NYSHRL despite not being a supervisor. | Wesser invited DeLisi to bring concerns to him; can be liable for aiding/abetting. | Not a supervisor; liability must be shown through participation. | Court allows NYSHRL liability; denies motion to dismiss. |
Key Cases Cited
- Feingold v. New York, 366 F.3d 138 (2d Cir. 2004) (supervisor participation and failure to remedy can support aiding-and-abetting liability under NYSHRL)
- Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) (aiding and abetting liability extends to those who actively participate)
- Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712 (2d Cir. 2010) (failure to investigate cannot always be retaliation; distinguish by context)
- Lewis v. Triborough Bridge and Tunnel Auth., 77 F. Supp. 2d 376 (S.D.N.Y. 1999) (supervisor’s failure to remediate discriminatory behavior can give rise to liability)