Figueroa v. KK Sub II, LLC
289 F. Supp. 3d 426
W.D.N.Y.2018Background
- Figueroa was hired as a Subway store manager in August 2013; Pharo was her area manager and Hammel the district manager/HR liaison.
- Pharo allegedly made four sexually suggestive or demeaning remarks (texts calling plaintiff a “bitch,” sexual innuendo about her mood and a salad-dressing bottle, and a comment wanting to see her nipple piercings).
- Figueroa complained to Hammel (phone call and letter) and solicited coworkers for corroborating statements; she filed an NYSDHR complaint on Sept. 25, 2014 and was fired the next day.
- Defendants contend Figueroa was terminated for soliciting false statements and abusing her supervisory position; NYSDHR issued probable-cause determinations on both complaints, later dismissed administratively.
- Court reviewed summary-judgment motions: KK Sub II and Pharo’s motion was granted in part and denied in part; Hammel’s motion denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pharo’s conduct created a hostile work environment under Title VII/NYSHRL | Pharo’s repeated sexual comments and requests made workplace abusive | Conduct was isolated, verbal, not severe or pervasive | No — summary judgment for employer on sexual-harassment claims granted |
| Whether defendants engaged in retaliatory harassment after protected complaint | Figueroa was demeaned/left to work near Pharo after complaining | Alleged post-complaint conduct was not materially adverse or pervasive | No — retaliatory-harassment claim dismissed |
| Whether termination was retaliatory (Title VII/NYSHRL) | Termination followed protected complaints and solicitation of corroboration; timing and investigation inconsistencies suggest pretext | Legitimate reason: Figueroa solicited false statements/abused position; other stated grounds (personal on-clock activity, discussing piercings) | Yes — disputed issues of fact (timing, inconsistencies, pretext) preclude summary judgment for defendant on retaliatory-termination claim |
| Whether Pharo and Hammel are individually liable under NYSHRL §296(6) (aiding/abetting) | Both participated in investigation and were present or jointly decided to terminate, and Hammel personally fired Figueroa | They deny sole decision-making; characterize Hammel as relaying owner decision; Pharo denies knowledge of termination beforehand | Yes — triable issues exist; summary judgment denied as to individual aiding-and-abetting claims |
Key Cases Cited
- Scott v. Harris, 550 U.S. 372 (court must view disputed facts in light most favorable to nonmovant on summary judgment)
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary-judgment standard requires no genuine dispute of material fact)
- Harris v. Forklift Sys., 510 U.S. 17 (hostile-work-environment factors: frequency, severity, physically threatening or humiliating, interference with work)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden-shifting framework for discrimination/retaliation claims)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (retaliation: materially adverse standard)
- Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (Title VII retaliation requires but-for causation)
- Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834 (applying McDonnell Douglas and but-for causation in retaliation context)
- Mormol v. Costco Wholesale Corp., 364 F.3d 54 (hostile-work-environment standard; single incidents vs. pervasive conduct)
- Alfano v. Costello, 294 F.3d 365 (incidents must be continuous and concerted to be pervasive)