82 F. Supp. 3d 533
E.D.N.Y2015Background
- Plaintiff Rodney Johnson sued alleging a hostile work environment and discrimination under the NYSHRL; multiple defendants included Nassau County (employer) and individual employee Manny DaSilva.
- On September 24, 2014 the Court granted in part and denied in part summary judgment; NYSHRL claims against the employer and other individual defendants were dismissed due to plaintiff's failure to file a timely notice of claim.
- DaSilva moved for reconsideration, arguing his remaining individual NYSHRL claim (aiding-and-abetting under § 296(6)) must be dismissed because the employer and other employees were no longer liable.
- DaSilva's legal theory: an individual can only be liable for aiding and abetting if the principal (employer) or co-employees remain potentially liable, because an individual cannot "aid and abet" his own conduct.
- The Court rejected DaSilva's motion, holding (1) an individual can be liable under § 296(6) even if his own conduct is the predicate for employer liability, and (2) procedural dismissal of the employer does not preclude a plaintiff from proving the employer condoned the conduct as part of an individual aider-and-abettor claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an individual defendant may be liable under NY Exec. Law § 296(6) where employer and co-employee NYSHRL claims were dismissed procedurally | Johnson argues he can still prove employer condonation and hold DaSilva liable individually under § 296(6) | DaSilva argues aiding-and-abetting liability requires a viable claim against the employer/co-employees; an individual cannot aid and abet his own conduct | Court: Individual may be liable under § 296(6) even if employer was dismissed procedurally; plaintiff may still prove employer condonation as a predicate |
| Whether Tomka permits individual liability when the individual’s conduct also serves as the predicate for employer vicarious liability | Johnson relies on Tomka to show individuals who participate in discriminatory conduct can be held personally liable | DaSilva contends Tomka does not allow an individual to aid-and-abet his own acts absent employer liability | Court: Tomka allows individual liability where employer condoned or approved the employee’s conduct; permitting recovery despite the employer’s procedural dismissal |
| Whether a procedural bar to suing the employer (notice-of-claim failure) prevents proof of the employer’s liability as predicate for aiding-and-abetting | Johnson: procedural dismissal of employer does not prevent proving employer condonation at trial against an individual | DaSilva: procedural dismissal forecloses the predicate needed for individual liability | Court: Procedural dismissal of the employer does not prevent plaintiff from proving the employer’s condonation for purposes of an individual § 296(6) claim (subject to ordinary evidentiary and preclusion rules) |
| Whether controlling precedent (e.g., Reid, Nunez, Raneri) requires dismissing the individual claim | Johnson: those cases are factually distinguishable or limited and do not control here | DaSilva: cites those decisions to argue individuals cannot aid-and-abet their own conduct | Court: Distinguishes and limits those cases; rejects the view that an individual cannot be liable under § 296(6) when his conduct is the predicate for employer liability |
Key Cases Cited
- Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) (individuals who participate in discriminatory conduct can be personally liable under NYSHRL)
- Feingold v. New York, 366 F.3d 138 (2d Cir. 2004) (discusses individual liability under state human rights law)
- State Div. of Human Rights on Complaint of Greene v. St. Elizabeth’s Hosp., 66 N.Y.2d 684 (N.Y. 1985) (employer condonation of employee discriminatory acts supports liability under NYSHRL)
- Jain v. McGraw-Hill Cos., Inc., 827 F. Supp. 2d 272 (S.D.N.Y. 2011) (discusses requirement of establishing employer liability as predicate for accessorial liability; court here distinguishes Jain where employer need not be a party)