2:07-cv-00988 | E.D.N.Y | Mar 25, 2009
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
_____________________ N o 07-CV-00988 (JFB) (AKT) _____________________ E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION , Plaintiff, and C YNTHIA L AFOND AND F RANCESCA C ICCIARI , Intervenor-Plaintiffs, VERSUS T HOMAS D ODGE C ORP . OF N.Y. D / B / A T HOMAS D ODGE S UBARU , ET AL ., Defendants. ___________________ MEMORANDUM AND ORDER March 25, 2009 ___________________ J OSEPH F. B IANCO , District Judge: assert parallel state law claims for hostile work environment under the New York State Plaintiff Equal Employment Opportunity Human Rights Law, Executive Law § 290 et Commission (“EEOC”) and intervenor- seq. (“NYSHRL”), as well as claims for plaintiffs Cynthia Lafond (“Lafond”) and retaliation, pursuant to Title VII and the Francesca Cicciari (“Cicciari”) (“intervenor- NYSHRL. In addition, the EEOC asserts a plaintiffs”) (collectively, “plaintiffs”) bring separate Title VII cause of action for this action for employment discrimination, retaliation on behalf of Denninger, alleging alleging that Lafond and Cicciari, as well as that she was terminated for complaining Barbara Denninger (“Denninger”), were about the alleged sexual harassment. In subjected to a hostile work environment, in connection with these claims, the EEOC sues violation of Title VII of the Civil Rights Act Thomas Dodge Corporation of New York, of 1964 as amended, 42 U.S.C. § 2000e et d/b/a Thomas Dodge Subaru, and Thomas seq. (“Title VII”). The intervenor-plaintiffs Dodge Motor Sports, Inc. (collectively, “Thomas Dodge”). Intervenor-plaintiffs judgment is unwarranted if “the evidence is further sue Thomas Mammolito (President such that a reasonable jury could return a and Owner of Thomas Dodge), Frank Cline verdict for the nonmoving party”). (Service Manager), and Albert Sessa (Parts Manager) in their individual capacities Once the moving party has met its pursuant to the NYSHRL , on the basis of burden, the opposing party “must do more aiding and abetting liability. than simply show that there is some
metaphysical doubt as to the material facts . . Defendants now move for summary . . [T]he nonmoving party must come judgment on all claims, pursuant to Fed. R. forward with specific facts showing that there Civ. P. 56(c). For the following reasons, is a genuine issue for trial .” Caldarola v. defendants’ motion for summary judgment is Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) denied in its entirety. (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp. , 475 U.S. 574, 586-87 II. D ISCUSSION (1986)). As the Supreme Court stated in Anderson , “[i]f the evidence is merely A. S UMMARY J UDGMENT S TANDARD colorable, or is not significantly probative, summary judgment may be granted.” The standards for summary judgment are Anderson , 477 U.S. at 249-50 (citations well settled. Pursuant to Federal Rule of omitted). Indeed, “the mere existence of Civil Procedure 56(c), a court may not grant some alleged factual dispute between the a motion for summary judgment unless “the parties” alone will not defeat a properly pleadings, depositions, answers to supported motion for summary judgment. Id. interrogatories, and admissions on file, at 247-48. Thus, the nonmoving party may together with affidavits, if any, show that not rest upon mere conclusory allegations or there is no genuine issue as to any material denials, but must set forth “concrete fact and that the moving party is entitled to particulars” showing that a trial is needed. judgment as a matter of law.” F ED . R. C IV . P. R.G. Group, Inc. v. Horn & Hardart Co. , 751 56(c); Globecon Group, LLC v. Hartford F.2d 69, 77 (2d Cir. 1984) (internal Fire Ins. Co. , 434 F.3d 165, 170 (2d Cir. quotations omitted). Accordingly, it is 2006) . The moving party bears the burden of insufficient for a party opposing summary showing that he or she is entitled to summary judgment “merely to assert a conclusion judgment. See Huminski v. Corsones , 396 without supplying supporting arguments or F.3d 53, 69 (2d Cir. 2005) . The court “is not facts.” BellSouth Telecomms., Inc. v. W.R. to weigh the evidence but is instead required Grace & Co. , 77 F.3d 603, 615 (2d Cir. to view the evidence in the light most 1996) (internal quotations omitted). The favorable to the party opposing summary Second Circuit has provided additional judgment, to draw all reasonable inferences guidance regarding summary judgment in favor of that party, and to eschew motions in discrimination cases: credibility assessments.” Amnesty Am. v. Town of W. Hartford , 361 F.3d 113, 122 (2d We have sometimes noted that an Cir. 2004); Anderson v. Liberty Lobby, Inc. , extra measure of caution is merited in 477 U.S. 242, 248 (1986) (summary affirming summary judgment in a
discrimination action because direct 1. Applicable Law evidence of discriminatory intent is rare and such intent often must be In order to prevail on a hostile work inferred from circumstantial evidence environment claim, a plaintiff must satisfy found in affidavits and depositions. two elements: “‘(1) that the workplace was See, e.g., Gallo v. Prudential permeated with discriminatory intimidation Residential Servs ., 22 F.3d 1219, that was sufficiently severe or pervasive to 1224 (2d Cir. 1994). Nonetheless, alter the conditions of her work environment, “summary judgment remains and (2) a specific basis exists for imputing available for the dismissal of the conduct that created the hostile discrimination claims in cases lacking environment to the employer.’” Mack v. Otis genuine issues of material fact.” Elevator Co. , 326 F.3d 116, 122 (2d Cir. McLee v. Chrysler Corp ., 109 F.3d 2003) (quoting Richardson v. N.Y. State 130, 135 (2d Cir. 1997); see also Dep’t of Corr. Serv. , 180 F.3d 426 (2d Cir. Abdu-Brisson v. Delta Air Lines, Inc. , 1999)); accord Terry v. Ashcroft , 336 F.3d 239 F.3d 456, 466 (2d Cir. 2001) (“It 128, 147 (2d Cir. 2003); Howley v. Town of is now beyond cavil that summary Stratford , 217 F.3d 141, 153 (2d Cir. 2000). judgment may be appropriate even in the fact-intensive context of With respect to the first element, discrimination cases.”). “[i]solated instances of harassment ordinarily
do not rise to this level.” Cruz v. Coach Schiano v. Quality Payroll Sys ., 445 F.3d Stores, Inc. , 202 F.3d 560, 570 (2d Cir. 597, 603 (2d Cir. 2006) (quoting Holtz v. 2000); see also Faragher v. City of Boca Rockefeller & Co. , 258 F.3d 62, 69 (2d Cir. Raton , 524 U.S. 775, 788 (1998) (holding 2001)). that “simple teasing . . . offhand comments,
and isolated incidents (unless extremely B. H OSTILE W ORK E NVIRONMENT C LAIM serious)” will not amount to discriminatory changes in the “terms and conditions of Defendants argue that they are entitled to employment”) (internal citations and summary judgment on the hostile work quotations omitted); Brennan v. Met. Opera environment claim because plaintiffs have Ass’n, Inc. , 192 F.3d 310, 318 (2d Cir. 1999) failed to proffer sufficient evidence to (holding that “[i]solated, minor acts or support such a claim. As set forth below, the Court disagrees and finds that summary judgment on the hostile work environment
neither its initial complaint, nor its Amended claim is unwarranted. [1] Complaint, alleges a pattern or practice violation and, thus, any contentions about a failure of proof regarding such violations is moot. Similarly, the [1] As a threshold matter, defendants argue that EEOC has stated that it is seeking monetary relief summary judgment should be granted dismissing only for the identified claimants — namely, all claims for monetary relief for “class members” Lafond, Cicciari, and Denninger. Therefore, any who have declined to participate in this action and arguments regarding summary judgment as to for which no individualized showing has been claims for monetary relief by non-claimants are made. In response, the EEOC has made clear that also moot. occasional episodes do not warrant relief”); single act can create a hostile work Williams v. County of Westchester , 171 F.3d environment if it in fact work[s] a 98, 100 (2d Cir. 1999) (holding that “to meet transformation of the plaintiff’s workplace.” his burden, the plaintiff must show more than Feingold , 366 F.3d at 150 (quotations and a few isolated incidents” and “evidence citation marks omitted) (alteration in solely of sporadic” discrimination does not original). suffice) (internal quotations omitted); Knight v. City of N.Y. , 303 F. Supp. 2d 485, 500 Further, to succeed on a hostile work (S.D.N.Y. 2004) (denying hostile work environment claim in the instant case, environment claim where incidents were “too plaintiffs must link the actions by defendants remote”); Ruggieri , 146 F. Supp. 2d at 217- to gender. Although “[f]acially neutral 18 (holding that a “collection of incidents may be included, of course, among administrative mixups, minor annoyances, the ‘totality of the circumstances’ that courts and perceived slights cannot be considered consider in any hostile work environment severe or pervasive harassment”); Francis v. claim,” plaintiff nevertheless must offer Chem. Bank. Corp. , 62 F. Supp. 2d 948, 959 some evidence from which a reasonable jury (E.D.N.Y. 1999) (dismissing hostile work could infer that the facially-neutral incidents environment claim where plaintiff only were in fact discriminatory. Alfano v. alleged four incidents). Costello , 294 F.3d 365, 378 (2d Cir. 2002);
see also Nakis v. Potter , No. 01 Civ. 10047 Instead, the conduct in question must be (HBP), 2004 WL 2903718, at *20 (S.D.N.Y. “severe or pervasive enough to create an Dec. 15, 2004) (holding that “[h]ostility or objectively hostile or abusive work unfairness in the workplace that is not the environment, and the victim must also result of discrimination against a protected subjectively perceive that environment to be characteristic is simply not actionable” under abusive.” Feingold v. N.Y. , 366 F.3d 138, Title VII) (citing Brennan , 192 F.3d at 318 150 (2d Cir. 2004). Other factors to consider (“A plaintiff must also demonstrate that she include “the frequency of the discriminatory was subjected to the hostility because of her conduct; its severity; whether it is physically membership in a protected class.”)). threatening or humiliating, or a mere offensive utterance; and whether it Moreover, as the Second Circuit has unreasonably interferes with an employee’s noted, “[t]he Supreme Court has ruled that work performance.” Terry , 336 F.3d at 148 employers are not automatically liable for (quotation marks omitted). The Second sexual harassment perpetrated by their Circuit has noted, however, that “[w]hile the employees.” Petrosino v. Bell Atlantic, 385 standard for establishing a hostile work F.3d 210, 225 (2d Cir. 2004) (citing environment is high, . . . [t]he environment Burlington Indus., Inc. v. Ellerth, 524 U.S. need not be ‘unendurable’ or ‘intolerable.’” 742 (1998); Faragher, 524 U.S. at 775). In Id. (quoting Whidbee v. Garzarelli Food instances where the harassment in the form Specialties, Inc. , 223 F.3d 62, 70 (2d Cir. of a hostile work environment is alleged to 2000)). Moreover, although a hostile work have been committed by non-supervisory co- environment generally consists of workers, “an employer’s vicarious liability “continuous and concerted” conduct, “a depends on the plaintiff showing that the employer knew (or reasonably should have issue of fact as to whether an employer’s known) about the harassment but failed to action is effectively remedial and prompt, take appropriate remedial action.” Petrosino, summary judgment is inappropriate.” 385 F.3d at 225. However, in instances Whidbee , 223 F.3d 62, 73 (2d Cir. 2000) where the alleged harassment involves a (citation omitted). supervisory employee, the court first looks to whether the supervisor’s behavior 2. Proper Time Frame for Analyzing “culminate[d] in a tangible employment Evidence of Harassment action” against the employee “such as hiring, firing, failing to promote, reassignment with As an initial matter, defendants argue that significantly different responsibilities, or a alleged incidents of sexual harassment prior decision causing a significant change in to September 13, 2005 cannot be considered benefits.” Ellerth, 524 U.S. at 765; accord in determining whether there was a hostile Mormol v. Costco Wholesale Corp., 364 F.3d work environment because, according to 54, 57 (2d Cir. 2004). If the harassment defendants, Thomas Dodge exercised resulted in a tangible employer action, “the reasonable care by having anti-discrimination employer will, ipso facto, be vicariously policies in place and because plaintiffs failed liable.” Mack v. Otis Elevator Co., 326 F.3d to report any sexual harassment issues to 116, 124 (2d Cir. 2003); accord Petrosino , Mammolito prior to that date. The Court 385 F.3d at 225. Moreover, even “[i]n the disagrees. As set forth below, this contention absence of such tangible action, an employer by defendants is simply incorrect as a matter will still be liable for a hostile work of law and erroneously consolidates two environment created by its supervisors unless separate legal issues. it successfully establishes as an affirmative defense that (a) it ‘exercised reasonable care It is axiomatic, as the Supreme Court to prevent and correct promptly any sexually explained in National Railroad Passenger harassing behavior,’ and (b) ‘the plaintiff Corporation v. Morgan , that “the incidents employee unreasonably failed to take comprising a hostile work environment are advantage of any preventive or corrective part of one unlawful employment practice,” opportunities provided by the employer or to and, therefore, “the employer may be liable avoid harm otherwise.’” Petrosino, 385 F.3d for all acts that are part of this single claim.” at 225 (quoting Ellerth , 524 U.S. at 765). A 536 U.S. 101, 118 (2002). Therefore, the defendant may attempt to satisfy the first Court should not carve up or disaggregate element by “the existence of an these alleged incidents of harassment because antiharassment policy during the period of such an approach “robs the incidents of their the plaintiff’s employment, although that fact cumulative effect, and of course, when the alone is not always dispositive.” Ferraro v. complaints are broken into their theoretical Kellwood Co., 440 F.3d 96, 102 (2d Cir. component parts, each claim is more easily 2006). As to the second element, “proof that dismissed.” Jackson v. Quanex Corp., 191 an employee has unreasonably failed to use F.3d 647, 660 (6th Cir. 1999) (internal the employer’s complaint procedure normally quotations omitted); see also Burns v. suffices to satisfy the employer’s burden.” McGregor Elec. Indus., Inc., 955 F.2d 559, Id. Of course, if “the evidence creates an 564 (8th Cir. 1992) (a “district court should not carve the work environment into a series existence of a hostile work environment – of discrete incidents and then measure the and rejected it: harm occurring in each episode”). Instead, the court must look at the “totality of the Although the record is silent on the circumstances” in assessing whether the point, we assume that the district hostile work environment claim survives court declined to consider the summary judgment. Demoret v. Zegarelli , allegations of unreported incidents of 451 F.3d 140, 149 (2d Cir. 2006) (citing harassment precisely because they Raniola v. Bratton , 243 F.3d 610, 617 (2d were not reported to Distasio’s Cir. 2001)). supervisor. However, the fact that the
incidents were or were not reported is Of course, the Court recognizes that, even irrelevant to a determination of if there is sufficient evidence of a hostile whether or not a hostile environment work environment to survive summary existed – the first element of judgment, summary judgment may be plaintiff’s claim. While a fact-finder warranted under the Faragher/Ellerth at trial is free to make credibility affirmative defense where the undisputed determinations and may therefore facts demonstrate that the defense exists and, disregard these unreported incidents, therefore, no liability should be imputed to at the summary judgment stage the the employer. However, that potential district court must assume that all of defense must be considered separately from plaintiff’s allegations pertaining to the the issue of whether there was a hostile work issue of a hostile work environment environment in the first place. In other are true and give them no less weight words, an employer is not permitted to argue than reported incidents. Thus, that, because the employer was unaware of unreported incidents of harassment certain incidents of harassment, those alleged by the plaintiff regarding the incidents should be treated as if they did not issue of hostile work environment, occur in determining whether a hostile work whether or not an explanation for the environment existed; rather, one examines failure to report is proffered, stand on whether under the totality of the the same footing as reported circumstances (regardless of the employer’s incidents; both must be taken as true knowledge) whether a hostile work at the summary judgment stage. environment existed under the first element of the claim and then, if it did, the next DiStasio v. Perkin Elmer Corp., 157 F.3d 55, question is whether the employer should be 62-63 (2d Cir. 1998). The Court then noted immune from liability for that environment that, although the employer cited a number of under the framework of Faragher/Ellerth in cases for the proposition that unreported connection with the second element of the instances of harassment should not be claim. In fact, the Second Circuit has considered in determining the pervasiveness addressed the precise legal contention being of hostility in the workplace, made by defendants in this case – namely, that incidents not reported to a supervisor these cases suggest only that the fact should not be considered in determining the that a sexual harassment complaint is
unreported may be relevant in to sexual harassment on a regular basis by considering whether an employer Sessa. First, with respect to plaintiff Lafond, knew of the alleged conduct. Further, there is evidence that, beginning in March . . . the fact that incidents were not 1998 and continuing throughout her entire reported will not automatically shield length of employment, Sessa routinely an employer from Title VII liability. subjected her to unwelcome verbal and
physical sexual harassment. (Pl.’s 56.1 ¶¶ Id . at 63. Thus, the Second Circuit 348-52, 356-57, 361-62, 366-70, 372-75, considered both the reported incidents and 377-83, 416, 438, 443-44.) Specifically, the “plainly relevant” unreported incidents in Lafond has provided sworn statements in determining whether summary judgment was which she details numerous instances in appropriate on the issue of whether there was which Sessa made sexual comments to her a hostile work environment and found no concerning her appearance, vulgar references reasonable basis for the district court’s to male and female bodies, portrayals of decision to grant summary judgment to sexual acts, comments about her genital area defendant given that evidence. Id. and about having sex with her, and
propositions for sex acts. Lafond also has Therefore, in the instant case, the Court provided evidence that Sessa repeatedly will separately examine whether (1) a touched her or attempted to touch her on rational jury could conclude the existence of multiple occasions during her employment at a hostile work environment based on all the Thomas Dodge, including her hair, arms, evidence, including pre-September 13, 2005 knees, pant pockets and, on September 13, incidents, and (2) if so, whether defendants 2005, her breasts. Similarly, Cicciari has are in any event entitled to summary provided sworn statements that, from judgment on such claim because they have October 2001 until Cicciari stopped working established as a matter of law that they have at Thomas Dodge in September 2005, Sessa a Faragher/Ellerth defense to the alleged repeatedly subjected Cicciari to sexual harassment and, thus, cannot be held liable. comments concerning her appearance, vulgar
references to male and female bodies and a. Evidence of Work Environment sexual organs, pornography, portrayals of sexual acts, touching of her hair and back, As summarized below, plaintiffs have set and his rubbing up against her. (Pl.’s 56.1 ¶¶ forth evidence of a substantial pattern of 387-94, 398-416.) In addition to this verbal and physical harassment at Thomas evidence of harassment by Sessa, plaintiffs Dodge that spanned several years, which also have provided evidence that, from 2003 clearly raises genuine issues of fact as to and continuing to the end of their whether the workplace was permeated with employment, Lafond and Cicciari were called discriminatory intimidation that was “b****” or “b****es” on a daily basis. (Pl.’s sufficiently severe or pervasive as to alter the 56.1 ¶¶ 326, 328, 331-32, 338, 343, 345.) conditions of their work environment. According to plaintiffs, they repeatedly told
him to stop making such references, but he First, plaintiffs Lafond and Cicciari have refused and, on at least one occasion, both set forth evidence that they were subject allegedly said to Cicciari, “I’ll fire you, ya b****” when she complained. (Pl.’s 56.1 ¶¶ gender. Although it may not be the only 334-36, 340-44.) inference that can be drawn from these facts,
a jury could reasonably infer, especially if the With respect to Denninger, there is also jury credits Denninger’s testimony about the evidence that, from shortly after the Sales Manager’s statement regarding gender, beginning of her employment and throughout that denying Denninger the opportunity to sell Suzuki products was related to gender. [2] her almost two months of working for Thomas Dodge, another salesperson, Gabriel Rodriguez, repeatedly and continuously Plaintiffs also set forth evidence that subjected Denninger to cursing and Mammolito made offensive gender-based derogatory gender-based epithets, which are comments in response to their complaints. outlined in the plaintiffs’ 56.1 Statement. For example, after speaking with Cicciari (Pl.’s 56.1 ¶¶ 545-46, 549, 569.) Denninger about her and Lafond’s complaints regarding asserts that the constant abuse interfered with Sessa, Mammolito allegedly met with Lafond her job as it made her uncomfortable to work and told her “women can be too sensitive” in at Thomas Dodge and caused her stress, response to Lafond’s complaint about Sessa nightmares, and flashbacks. (Pl.’s 56.1 ¶¶ putting his head in her breasts. (Pl.’s 56.1 ¶¶ 441.) [3] 548-49, 577.) Denninger further claims that when she took the complaints to Mammolito, he called her derogatory epithets, and with his arm around Rodriguez said, “these [2] The Court notes that, even apart from this alleged b****es, they go away, they fade away and I incident, there is sufficient evidence of a hostile promise you she won’t be around for long.” work environment, based upon the disputed (Pl.’s 56.1 ¶ 308.) Denninger also testified evidence regarding the alleged consistent use of that, in addition to the alleged harassment by gender-based epithets and other harassing conduct, Rodriguez, she was subjected to harassment to defeat defendants’ summary judgment motion in the Service Department where Lafond and and warrant a trial. Cicciari were employed. (Pl.’s 56.1 ¶¶ 550- [3] Plaintiffs also submit evidence that Mammolito 52). asked Frank Frazzita (Service Manager) whether he was “tapping” Lafond and asked whether she “was
Denninger also stated that the Suzuki any good.” (Pl.’s 56.1 ¶¶ 354, 355.) This is based Sales Manager told her that he did not want on Lafond’s testimony, and the Court recognizes her or any other woman selling Suzuki that inadmissible hearsay is generally not to be products and denied her assistance with considered on a motion for summary judgment. selling Suzuki, which Denninger claims See Howley v. Town of Stratford , 217 F.3d 141, affected her ability to do her job. (Pl.’s 56.1 155 (2d Cir. 2000); see also Raskin v. Wyatt Co. , ¶¶ 533-37.) Although defendants argue that 125 F.3d 55, 66 (2d Cir. 1997). However, the this incident should not be considered record is replete with incidents of sexual harassment that may form the basis of a hostile because it was facially neutral in that the
work environment claim and, regardless of Sales Manager did not want anyone, male or Mammolito’s personal use of gender-based epithets female, selling the products other than him, or harassing statements, there is a genuine issue of the Court is unable to conclude as a matter of material fact as to whether Mammolito’s behavior law that this incident is not attributable to contributed to or condoned Sessa’s and/or Cline’s In sum, after carefully reviewing the b. Evidence Regarding Vicarious Liability record and drawing all reasonable inferences in plaintiffs’ favor, the Court concludes that Defendants contend that they are entitled sufficient evidence exists to raise an issue of to summary judgment because they cannot be material fact regarding the first prong of the held vicariously liable for any alleged hostile work environment claim – namely, harassment by Thomas Dodge employees the existence of a hostile work environment. towards plaintiffs. As set forth below, there Plaintiffs have proffered evidence of a are genuine issues of disputed fact on the pattern of gender-based epithets, physical vicarious liability issues that preclude
summary judgment. [5] harassment, and treatment regarding their work that a jury could reasonably infer was attributable to gender and created a hostile i. Alleged Harassment by Cline work environment. Although defendants argue that any alleged comments and As noted supra , Thomas Dodge is incidents were not sufficiently pervasive or vicariously liable for any alleged harassment severe to alter the terms and conditions of by supervisor Cline unless it can show (1) their employment, the evidence proffered in that it exercised reasonable care to prevent or this case is clearly sufficient to have the issue correct the harassment, or (2) Lafond and decided by a jury and, thus, summary Cicciari unreasonably failed to take judgment on the first prong of the hostile work environment claim is unwarranted. [4] advantage of any preventive or corrective (Pl.’s 56.1 ¶¶ 321-22.) opportunities provided by Thomas Dodge. Ellerth, 524 U.S. at 745. There are disputed Defendants counter that, in addition to issues of material fact on these requirements the written policy, there was an unwritten that preclude summary judgment. “open door” policy by Mammolito in which
he allowed employees to freely meet with With respect to the first prong of the him to discuss any matter that they wished. Faragher/Ellerth affirmative defense, (Def.’s 56.1 ¶¶ 69, 108.) Defendants note “[a]lthough not necessarily dispositive, the that Lafond and Cicciari did seek existence of an anti-harassment policy with Mammolito’s assistance for other personal complaint procedures is an important issues and, thus, clearly knew of this “open consideration in determining whether the door” policy. employer has satisfied the first prong of this defense.” Caridad, 191 F.3d at 295. Although the Court recognizes that Defendants argue that Thomas Dodge had a summary judgment for the employer is “strict anti-discrimination policy prohibiting appropriate in cases where the undisputed any form of sexual harassment, facts demonstrate that the employer discrimination and/or retaliation in the unquestionably took reasonable steps to workplace.” (Defendants’ Memorandum of prevent and remedy harassment, this case is Law, at 14.) Specifically, the policy not one of them. A review of the record, provided that complaints of harassment including the above-referenced disputes should be reported by employees to his or her regarding the adequacy of defendants’ anti- Department head and, upon receiving such discrimination policy, preclude summary complaint, an investigation would be judgment on this issue. conducted by the Human Resources Department and the report would be provided Similarly, summary judgment is to Thomas Mammolito. Thus, defendants unwarranted on the second prong of contend that, “[b]y establishing an effective Faragher/Ellerth – namely, whether Lafond sexual harassment policy and providing and Cicciari unreasonably failed to take Lafond and Cicciari with a copy, Defendant advantage of any preventive or corrective Thomas Dodge Subaru unquestionably took opportunities provided by Thomas Dodge. reasonable steps to prevent and remedy Although defendants argue that summary improper conduct.” (Defendants’ judgment is appropriate because it is Memorandum of Law, at 15.) undisputed that Lafond and Cicciari did not
complain to Mammolito about the alleged Plaintiffs argue that the policy was harassment by Cline (and/or Sessa) prior to inadequate because it only directed September 13, 2005, plaintiffs have employees to go to their Department presented evidence that, before their Manager with complaints of harassment and September 13, 2005 complaint to did not provide alternative avenues of Mammolito, Lafond and Cicciari complained complaint. In addition, plaintiffs contend to Cline who, as their Department Manager, that there was no training on the policy, or on was the person designated to receive preventing or remedying sexual harassment. complaints under the policy. (Pl.’s 56.1 ¶¶ 317, 327, 333, 343.) Lafond states that she Defendants argue that Mammolito, as soon as also complained to Mammolito about Cline’s he became aware on September 13, 2005 of harassment before September 13, 2005. the allegations of harassment by Sessa, took (Pl.’s 56.1 ¶¶ 153, 336, 342.) Lafond further prompt remedial action by, among other asserts that she complained in 2005 to things, (1) issuing a disciplinary notice to Rosanne Coppola, who had responsibility for Sessa with a final warning that he would be the human resources functions at Thomas terminated for any future inappropriate Dodge. (Pl.’s 56.1 ¶¶ 325, 340-41.) Finally, behavior, (2) reviewing the warning with as noted supra , Lafond and Cicciari state that Sessa and having him sign the notice, and (3) they together complained to Mammolito notifying Cline of the situation. According to about Cline on September 13, 2005. (Pl.’s defendants, “[t]he notice is critical because it 56.1 ¶¶ 342-44, 455-46.) evidences the Respondent’s zero-tolerance
policy concerning sexual harassment and According to plaintiffs, even after these Defendant’s immediate response to Lafond & various complaints to managers and Cicciari’s complaints.” (Defendants’ Mammolito regarding Cline’s harassment, Memorandum of Law, at 30.) Defendants including complaints made prior to further note that Lafond admits “that September 13, 2005, Thomas Dodge did not Mammolito immediately disciplined Sessa discipline Cline and took no action to prevent upon learning of the complaint and made him or correct the harassment. Lafond claims apologize to Lafond.” ( Id. ) Defendants also that, after complaining to Mammolito, who point to evidence that, on September 14, told her to close her door, Cline prohibited 2005, Mammolito convened a meeting of his Lafond from closing her door, became louder managers in a conference room, told them and more abusive, and continued to harass there was a zero tolerance policy against her without being disciplined. (Pl.’s 56.1 ¶¶ sexual misconduct, and distributed a memo 342-44, 455-56.) about the policy with paychecks on
September 16, 2005 that they had to sign and Given the disputed facts concerning return to management. (Def.’s 56.1 ¶¶ 192- whether defendants exercised reasonable care 200.) to prevent and promptly correct the sexually harassing behavior alleged against Cline, However, plaintiffs dispute several after being notified of such behavior by aspects of defendants’ response. First, plaintiffs, summary judgment on this issue is plaintiffs assert that, long before complaining also unwarranted. to Mammolito in September 2005, they had
repeatedly complained to various supervisors ii. Alleged Harassment by Sessa about the harassment and that those supervisors did nothing and failed to advise As noted supra , Thomas Dodge is Mammolito, as required under the policy. vicariously liable for co-worker Sessa’s Specifically, Lafond and Cicciari claim to alleged harassment if it knew or reasonably have repeatedly complained about Sessa to should have known about the harassment, but Cline, who had the responsibility to report failed to take appropriate action to remedy the complaint to Mammolito. (Pl.’s 56.1 ¶¶ the situation. See Petrosino , 385 F.3d at 225. 99, 123-24, 144, 150-51, 314, 319, 367-68, 370-71, 373-75, 377, 379-81, 397, 402-04, company policy, she is under no duty 407, 409-10, 414, 417.) Moreover, there is to report it a second time before the evidence that (1) Christian Damm, another company is charged with knowledge Department Manager, received complaints of it. from Lafond and was aware of Sessa’s harassment (Pl.’s 56.1 ¶¶ 509-12, 514-17), Distasio, 157 F.3d at 65. Thus, there are and (2) Lafond and Carole Scott, another disputed issues of fact related to the employee, complained to Coppola, another adequacy of defendants’ response to Department Manager, about Sessa. (Pl.’s plaintiffs’ alleged complaints to supervisors 56.1 ¶¶ 376, 502.) Plaintiffs contend that prior to September 2005. Cline, Coppola, and Damm, who were all Department Managers, did nothing and did Second, plaintiffs point to evidence that not report the allegations to Mammolito. the response in September 2005 also was Although defendants argue that plaintiffs inadequate. Plaintiffs contend that should have then gone to Mammolito, who Mammolito referred to their complaints as they knew had an “open door” policy, the “bulls**t.” (Pl.’s 56.1 ¶¶ 102, 428.) Second Circuit has noted: Plaintiffs further assert that “[t]he memo
handed out with employee’s paychecks was [T]he plaintiff’s failure to report to inadequate because it did not provide any other company personnel the advice on how to complain, made no change incidents of harassment that she in the insufficient complaint procedure in the reported to [a supervisor] is irrelevant handbook, and was not given to employees to to the adequacy of [the employer’s] keep.” (Plaintiffs’ Memorandum of Law, at response. [The employer] argues that 17.) Finally, plaintiffs contend that the a harassed plaintiff has other options harassment continued even after the warning under its policy because the and memo. For example, there is evidence misconduct may be reported not only that Sessa continued with his harassment, to the employee’s “department including making sexually explicit comments supervisor,” but also to her “manager, and jokes to Lafond and bullying Cicciari. Human Resources representative, or (Pl.’s 56.1 ¶¶ 102, 214, 240, 443-45.) to the Corporate Equal Employment According to Cicciari, when she complained Opportunity Manager.” Implicit in to Mammolito about Sessa’s bullying, he told this argument is the notion that the her to ignore him and go back to work. (Pl.’s plaintiff has an affirmative duty to 56.1 ¶¶ 102, 440.) Plaintiffs also cite to other bring her allegations to the evidence of continuing harassment that went company’s attention in more than one unaddressed, including pornography on way when she believes the company’s company computers. (Pl.’s 56.1 ¶¶ 478-90.) response to her harassment claim is inadequate. We reject this attempt to Viewing this evidence in the light most shift the company’s failure to respond favorable to plaintiffs, a rational jury could onto the plaintiff’s shoulders. When conclude that Thomas Dodge failed to take a plaintiff reports harassing appropriate preventive or remedial action misconduct in accordance with with respect to Sessa’s harassment. And, as
discussed supra , summary judgment is C. R ETALIATION unwarranted on the second prong of Faragher/Ellerth as well – namely, whether 1. Applicable Law Lafond and Cicciari unreasonably failed to take advantage of any preventive or Title VII and the NYSHRL prohibit an corrective opportunities provided by Thomas employer from firing an employee in Dodge. [6] Accordingly, summary judgment on retaliation for having made a charge of the hostile work environment claims are discrimination. 42 U.S.C. § 2000e-3(a); N.Y. denied. [7] Exec. Law § 296(1)(e). [8] “Title VII is
violated when ‘a retaliatory motive plays a part in adverse employment actions toward
an employee, whether or not it was the sole Retaliation claims are governed by the cause.’” Terry v. Ashcroft , 336 F.3d 128, three-step, burden-shifting framework 140-41 (2d Cir. 2003) (internal citations established by the Supreme Court in omitted). To establish a prima facie case of McDonnell Douglas Corp. v. Green , 411 retaliation, a plaintiff must show that (1) she U.S. 792, 802-03 (1973). Again, to establish engaged in a protected activity; (2) defendant a prima facie case of retaliation, a plaintiff was aware of that activity; (3) she suffered an must show that (1) she engaged in a protected adverse employment action; and (4) there activity; (2) defendant was aware of that was a causal connection between the activity; (3) she suffered an adverse protected activity and the adverse employment action; and (4) there was a employment action. Distasio v. Perkin Elmer causal connection between the protected Corp. , 157 F.3d 55, 66 (2d Cir. 1998); see activity and the adverse employment action. Terry , 336 F.3d at 141. Distasio v. Perkin Elmer Corp. , 157 F.3d 55,
66 (2d Cir. 1998). The Second Circuit has The term “protected activity” refers to characterized the evidence necessary for the action taken to protest or oppose statutorily plaintiff to satisfy this initial burden as prohibited discrimination. See 42 U.S.C. § “minimal” and “de minimis.” See 2000e-3; see also Wimmer v. Suffolk Co. Zimmermann v. Assocs. First Capital Corp. , Police Dep’t , 176 F.3d 125, 134-35 (2d Cir. 251 F.3d 376, 381 (2d Cir. 2001). Although 1991). Informal as well as formal complaints the burden that a plaintiff must meet at the constitute protected activity. See Sumner v. prima facie stage is minimal, the plaintiff U.S. Postal Serv. , 899 F.2d 203, 209 (2d Cir. must at least proffer competent evidence of 1990). Moreover, to establish that her circumstances that would be sufficient to activity is protected, a plaintiff “need not permit a rational finder of fact to infer a prove the merit of [her] underlying discriminatory motive. See Cronin v. Aetna discrimination complaint, but only that [she] Life Ins ., 46 F.3d 196, 204 (2d Cir. 1995). was acting under a good faith, reasonable belief that a violation existed.” Sumner , 899 Once plaintiff establishes a prima facie F.2d at 209; see also Grant v. Hazelett case, the burden shifts to the defendant to Strip-Casting Corp ., 880 F.2d 1564, 1569 (2d “ ‘ a r t i c u l a t e s o m e l e g i t i m a t e , Cir. 1989). nondiscriminatory reason for the’
termination.” Patterson v. County of Oneida , A plaintiff may present proof of causation 375 F.3d 206, 221 (2d Cir. 2004) (quoting either “(1) indirectly, by showing that the O’Connor v. Consol. Coin Caterers Corp. , protected activity was followed closely by 517 U.S. 308, 311 (1996) (quoting discriminatory treatment, or . . . (2) directly, McDonnell Douglas , 411 U.S. at 802)). If through evidence of retaliatory animus the defendant carries that burden, “the burden directed against the plaintiff by the shifts back to the plaintiff ‘to show that the defendant.” Gordon v. N.Y. City Bd. of reasons [proffered] by the defendant were not Educ. , 232 F.3d 111, 117 (2d Cir. 2000); see the defendant’s true reasons, but rather a also Cosgrove v. Sears, Roebuck & Co. , 9 pretext for [retaliation].’” Spector v. Bd. of F.3d 1033, 1039 (2d Cir. 1993). Trustees of Comm. Tech Colleges , No. 08
Civ. 0398, 2009 WL 693353, at *1 (2d Cir. 2009) (quoting Taitt v. Chem. Bank , 849 F.2d should not obscure the simple principle that 775, 777 (2d Cir. 1988)). lies at the core of anti-discrimination cases.
In these, as in most other cases, the plaintiff To meet this burden, the plaintiff may has the ultimate burden of persuasion.”). rely on evidence presented to establish her prima facie case as well as additional 2. Application evidence. Such additional evidence may include direct or circumstantial evidence. The Court finds that plaintiff EEOC, with Desert Palace, Inc. v. Costa , 539 U.S. 90, respect to Denninger, has made out the prima 99-101 (2003). It is not sufficient, however, facie case required by McDonnell Douglas . for a plaintiff merely to show that he or she There is evidence that defendants were aware satisfies “ McDonnell Douglas’ s minimal of Denninger’s protected activity in the form requirements of a prima facie case” and to of complaining about sexual harassment, her put forward “evidence from which a discharge was close in time to such factfinder could find that the employer’s complaints, and there is other evidence explanation . . . was false.” James v. N.Y. (discussed infra ) that satisfy the prima facie Ass’n, 233 F.3d 149, 157 (2d Cir. 2000). standard. Having found that plaintiff has met Instead, the key is whether there is sufficient its prima facie case, the Court proceeds to the evidence in the record from which a ultimate question of whether plaintiff has reasonable trier of fact could find in favor of presented sufficient evidence from which a plaintiff on the ultimate issue, that is, reasonable jury could find retaliation. whether the record contains sufficient Defendant has articulated a legitimate, evidence to support an inference of nondiscriminatory reason for terminating retaliation. See id. ; Connell v. Consolidated Denninger, contending that Denninger was Edison Co. of N.Y. , Inc ., 109 F. Supp. 2d 202, discharged because of alleged poor sales.
207-08 (S.D.N.Y. 2000).
N o t w i t h s t a n d i n g d e f e n d a n t s ’ As the Second Circuit observed in James , nondiscriminatory reason for discharging “the way to tell whether a plaintiff’s case is Denninger, defendants’ motion for summary sufficient to sustain a verdict is to analyze the judgment as to Denninger’s retaliation claim particular evidence to determine whether it is denied. In particular, plaintiff offers reasonably supports an inference of the facts several forms of evidence to support the plaintiff must prove – particularly retaliation claim. First, it disputes [retaliation].” 233 F.3d at 157; see Lapsley v. defendants’ contention that Denninger had Columbia Univ. , 999 F. Supp. 506, 513-16 poor performance in selling cars given the (S.D.N.Y. 1998) (advocating elimination of circumstances. (Pl.’s 56.1 ¶¶ 268, 271, 278, McDonnell Douglas test in favor of 280-81 286-87, 527-28, 530-540, 543.) simplified approach focusing on ultimate Second, Denninger points to a male issue of whether sufficient evidence exists to employee, Raymond Montefusco, who had permit jury to find discrimination); see also sales performance issues in April and May Norton v. Sam’s Club , 145 F.3d 114, 118 (2d 2005, but was not discharged. (Pl.’s 56.1 ¶¶ Cir. 1998) (“The thick accretion of cases 269, 271, 274, 278-80, 307, 544, 579-81.) interpreting this burden-shifting framework Although defendants argue that Montefusco was inexperienced and thus his sales cannot termination was reasonable” and noting that be compared to Denninger, the Court “[i]t is not the task of this court to determine concludes that, drawing all reasonable whether [the investigator’s] investigation was inferences in Denninger’s favor, a jury could sufficiently thorough or fair”). Similarly, the conclude that Montesfusco was similarly Court recognizes that temporal proximity, by situated to Denninger. See McGuinness v. itself, does not permit a plaintiff to overcome Lincoln Hall , 263 F.3d 49, 54 (2d Cir. 2001) a defendant’s non-discriminatory reason for (“A plaintiff is not obligated to show termination. See, e.g., Chamberlain v. disparate treatment of an identically situated Principi , 247 Fed. Appx. 251, 2007 WL employee.”). Third, plaintiff points to the 2692339, at *2 (2d Cir. Sept. 12, 2007). warning she testified was given by her direct However, in the instant case, Denninger does supervisor not to push her complaints and the not simply rely on temporal proximity or statement by Mammolito to Rodriguez – in factual disputes about her performance to the context of allegedly derogatory rebut the proffered reason for termination, statements about Denninger two weeks but rather relies on such evidence in before Denninger was fired – that Denninger combination with other evidence, including “won’t be around for long.” (Pl.’s 56.1 ¶¶ the above-referenced comments made at the 555-56, 571-72, 576.) Finally, Denninger time of her complaints and the allegedly points to the close proximity between disparate treatment of similarly-situated Denninger’s complaints, the threats to fire employees. In short, after having carefully her, and her discharge – which all occurred in examined the evidence contained in the a span of several weeks. See Cioffi v. Averill record, the Court concludes that, when Park Cent. Scho. Dist. Bd. of Educ. , 444 F.3d viewed as a whole and in the light most 158, 168 (2d Cir. 2006) (“[T]he lapse of only favorable to plaintiff, the evidence creates several months after the letter and several genuine issues of material fact as to whether weeks after the press conference between the defendants’ stated reasons for terminating protected speech and the adverse Denninger were pretextual, and whether her employment action is sufficient to support an protected activity was a factor in the allegation of a causal connection strong termination decision. Accordingly, summary
judgment on the retaliation claim is denied. [9] enough to survive summary judgment.”). The Court recognizes that the fact that an employee disagrees with an employer’s [9] Defendants also seek summary judgment on the reasons for termination, or even has evidence intervenor-plaintiffs’ retaliation claim under that the decision was objectively incorrect, NYSHLR. (Defendants’ Memorandum in Further does not demonstrate, by itself, that the Support, at 1.) However, in this case, the Court employer’s proffered reasons are a pretext for finds the intervenor-plaintiffs’ federal and state termination. See, e.g., Rorie v. United Parcel retaliation claims to warrant a trial. Defendants argue that no “adverse employment action” can be Serv., Inc. , 151 F.3d 757, 761 (8th Cir. 1998)
shown here, where only constructive discharge is at (stating that “the relevant inquiry was issue. However, the only case that they point to, whether [plaintiff] created a genuine issue of Croswell v. Triborough Bridge & Tunnel Auth ., No. material fact as to whether her discharge was 03 Civ. 2990 (NRB), 2007 U.S. Dist. LEXIS gender-based and not whether her 58343, at *36 (E.D.N.Y. Aug. 7, 2007), does not C. N EW Y ORK E XECUTIVE L AW § 296(6) stand for this proposition and proceeded to “address Defendants further argue that summary the incidents that plaintiff alleges created an ‘intolerable work atmosphere’ individually below judgment should be granted with respect to in connection with our discussion of her retaliation the intervenor-plaintiffs’ fifth cause of action claim.” The Supreme Court has defined an
against the individual defendants for aiding, “adverse employment action” in the Title VII abetting, inciting, compelling and/or coercing retaliation context (distinct from and broader than sexual harassment, in violation of Section the standard in the Title VII discrimination context) 296(6) of the New York Executive Law. The to mean an action that is “materially adverse” and Court disagrees. that “well might have dissuaded a reasonable worker from making or supporting a charge of
Section 296(6) states that it is unlawful discrimination.” Burlington Northern and Santa Fe discriminatory practice “for any person to Ry. Co. v. White , 548 U.S. 53, 68 (2006) (internal aid, abet, incite, compel or coerce the doing citations omitted). In particular, “the significance of any of the acts forbidden under [the of any given act of retaliation will often depend upon the particular circumstances.” Id . at 69. NYSHRL], or attempt to do so.” N.Y. Exec. Thus, the Court declines to grant summary
Law § 296(6). In Patrowich v. Chemical judgment dismissing these claims, given that there Bank, 63 N.Y.2d 541, 542 (N.Y. 1984), the exist disputed issues of material fact regarding the elements of Lafond’s and Cicciari’s retaliation claims, including whether or not defendants’ alleged actions resulting in the intervenor- Richardson v. N.Y. Dep’t of Corr. Servs ., 180 F.3d plaintiffs’ constructive discharges constituted 426, 444 (2d Cir. 1999), abrogated on other adverse employment actions that are actionable grounds by Burlington Northern and Santa Fe Ry. under Title VII and NYSHRL. See Schiano v. Co. v. White , 548 U.S. 53, 68 (2006), where the Quality Payroll Sys., Inc. , 445 F.3d 597, 608-09 Second Circuit held that “unchecked retaliatory co- (2d Cir. 2006) (considering retaliatory constructive worker harassment, if sufficiently severe, may discharge claim); see also Cioffi v. N.Y. Comm. constitute adverse employment action so as to Bank , 465 F. Supp. 2d 202, 207-12 (E.D.N.Y. satisfy [that prong] of the retaliation prima facie 2006) (upholding jury verdict on retaliation claim case,” for the reasons discussed supra in connection based on constructive discharge); Borrero v. Am. with the hostile work environment claims. Id . at Exp. Bank Ltd. , 533 F. Supp. 2d 429, 441 446; see also Nugent v. The St. Luke’s/Roosevelt (S.D.N.Y. 2008) (denying summary judgment on Hosp. Ctr. , No. 05 Civ. 5109 (JCF), 2007 WL retaliation claim based on constructive discharge); 1149979, at *13 (considering both a retaliatory Whitner v. Emory Univ ., No. 1:06 Civ. 1518 hostile work environment claim and a retaliatory (TWT), 2008 WL 4224407, at *22 (N.D. Ga. Sept. constructive discharge claim); McWhite v. N.Y. City 12, 2008) (considering whether the “same facts Housing Auth. , No. 05 Civ. 0991 (NG) (LB), 2008 discussed in connection with [plaintiff’s] WL 1699446, at *11 (E.D.N.Y. Apr. 10, 2008) constructive discharge claim” constitute a “material (applying Richardson to a retaliatory hostile work adverse employment action” for purposes of Title environment claim); Brown v. N.Y. State Dep’t of VII retaliation claim); Heilman v. Memeo , No. 304 Corr. Servs ., 583 F. Supp. 2d 404, 421-22 Civ. 00683 (LRH) (VPC), 2008 WL 2669294, *7 (W.D.N.Y. 2008) (denying summary judgment on (D.Nev. Jun 27, 2008) (“constructive discharge is Title VII retaliation claim in part on plaintiff’s co- only one type of adverse action.”). Moreover, workers’ alleged retaliatory acts and citing intervenor-plaintiffs’ claims may proceed under Richardson ). New York Court of Appeals held than an (E.D.N.Y. 2003); Hasbrouck v. Bankamerica employee may not be sued individually under Housing Services, Inc. , 105 F. Supp. 2d 31, this section “if he is not shown to have any 39 (N.D.N.Y. 2003); McCoy v. City of N.Y. , ownership interest or any power to do more 131 F. Supp. 2d 363, 371 (E.D.N.Y. 2001); than carry out personnel decisions made by Turner v. Olympic Reg’l Dev. Auth ., 89 F. others.” Id . Supp. 2d 241, 243 (N.D.N.Y. 2000); Arena v.
Agip USA Inc., No. 95 Civ. 1529 (WHP), However, the Second Circuit 2000 WL 264312, at *3 (S.D.N.Y. Mar. 8, distinguished Patrowich in cases where a 2000). Accordingly, because there is defendant actually participates in the conduct sufficient evidence that the individual giving rise to a discrimination claim, stating defendants personally participated in the that such a defendant may be held personally discriminatory conduct to support an liable under the statute. Tomka v. Seiler aiding-and-abetting theory of individual Corp. , 66 F.3d 1295, 1317 (2d Cir. 1995), liability under the NYSHRL, the Court abrogated on other grounds by Burlington , denies defendants’ summary judgment 524 U.S. at 754, and Faragher , 524 U.S. at motion with respect to this cause of action. 807; accord Steadman v. Sinclair , 223 A.D.2d 392, 393 (N.Y. App. Div. 1996) III. C ONCLUSION (“Defendant’s counterclaims . . . seeking to hold plaintiffs individually liable as aiders For the foregoing reasons, defendants’ and abettors of such retaliation under motion for summary judgment is denied in its Executive Law § 296 (6), have support in our entirety. recent case law holding that ‘an individual may be held liable for aiding discriminatory conduct’”) (quoting Peck v. Sony Music SO ORDERED. Corp. , 221 A.D.2d 157, 158 (N.Y. App. Div. 1995) and citing Tomka , 66 F.3d at 1317); Peck v. Sony Music Corp. , 221 A.D.2d at 158 ______________________ (“Executive Law § 296 (6) and (7) provide JOSEPH F. BIANCO that an individual may be held liable for United States District Judge aiding and abetting discriminatory conduct. [ Patrowich v Chemical Bank ] is not a bar to Dated: March 25, 2009 maintenance of the action.”). But see Central Islip, New York Trovato v. Air Express Int’l , 238 A.D.2d 333, * * * 334 (N.Y. App. Div. 1997). This Court must follow Second Circuit precedent and apply The attorney for plaintiff EEOC is Konrad Tomka . See, e.g., Tully-Boone v. N. Batog, Esq., of the Equal Employment Shore-Long Island Jewish Hosp. Sys. , 588 F. Opportunity Commission, New York District Supp. 2d 419, 425 (E.D.N.Y. 2008); Huaman
Office, 33 Whitehall Street, 5th Floor, New v. Am. Airlines, Inc. , No. 00-CV-6336 (FB) York, New York 10004. The attorney for (MDG), 2005 WL 2413189, at *4 (E.D.N.Y. intervenor-plaintiffs is Scott Michael Sept. 29, 2005); Perks v. Town of Mishkin, Esq., of Scott Michael Mishkin, Huntington , 251 F. Supp. 2d 1143, 1161 P.C., One Suffolk Square, Suite 240, Law Group PLLC, 3000 Marcus Ave., Suite Islandia, New York 11749. The attorneys for 3W3, Lake Success, NY 11042. defendants are Perry S. Heidecker, Esq., and Michael J. Mauro, Esq., of Milman Labuda
NOTES
[5] Defendants correctly note that a claim of constructive discharge does not generally constitute a “tangible employment action” for purposes of the Faragher/Ellerth affirmative defense. See Pennsylvania State Police v. Suders , 542 U.S. 129, inappropriate conduct in creating or maintaining 149 (2004) (resolving a Circuit split on this issue); accord Caridad v. Metro-North Commuter R.R. , this hostile work environment. 191 F.3d 283, 294 (2d Cir. 1999). As set forth
[4] In addition to alleging hostile work environment supra , a tangible employment action would result claims under Title VII, intervenor-plaintiffs allege in a finding of vicarious liability on the part of a parallel state law claim under NYSHLR. Thomas Dodge ipso facto . Mack , 326 F.3d at 124; Generally, claims of discrimination brought under accord Petrosino , 385 F.3d at 225. The Court New York state law are analyzed using the same therefore focuses the analysis, with respect to framework as claims brought under Title VII, and Lafond and Cicciari, on the applicability of the the outcome under state law will be the same as the Faragher/Ellerth defense. See Suders , 542 U.S. at outcome under Title VII. See Van Zant v. KLM 148-49. However, as discussed infra , even Royal Dutch Airlines , 80 F.3d 708, 714-15 (2d Cir. assuming that no tangible employment action 1996). Thus, for the reasons stated supra , the occurred with respect to Cicciari and Lafond, the Court denies defendants’ motion for summary Court finds that genuine issues of material fact exist judgment with respect to the intervenor-plaintiffs’ to preclude summary judgment on the vicarious state law claims for hostile work environment. liability issue, based on the Faragher/Ellerth Discussion of the state law standard for vicarious affirmative defense. With respect to Denninger, liability in this context follows infra , in connection defendants do not argue that the Faragher/Ellerth with the evidence on vicarious liability. affirmative defense is available.
[6] With respect to the second prong of the Faragher/Ellerth defense, the Court need not decide whether Lafond and Cicciari’s failure to laws with regard to the imputation of liability to an complain to Mammolito was driven by a reasonable employer, requiring that the employer encourage, fear of retaliation. ( See Defendants’ Memorandum condone, or approve of the conduct . . . . This of Law, at 16.) As discussed supra , there is interpretation is rooted in Totem Taxi v. State evidence that Lafond and Cicciari did in fact Human Rights Appeal Bd. , 65 N.Y.2d 300, 305, complain to various Department Managers, and 491 N.Y.S.2d 293, 480 N.E.2d 1075 (1985), and ultimately to Mammolito, and thus summary Human Rights ex rel. Greene v. St. Elizabeth's judgment is inappropriate on the issue of whether Hosp ., 66 N.Y.2d 684, 687, 496 N.Y.S.2d 411, 487 Lafond and Cicciari unreasonably failed to avail N.E.2d 268 (1985), in which the New York Court themselves of preventive and corrective of Appeals held that NYSHRL does not impose opportunities provided by Thomas Dodge. In any liability on employers absent a showing that the event, plaintiffs have proferred evidence from employer became a party to the discriminatory which a reasonably jury could find that they did conduct.”); Heskin v. Insite Advertising, Inc. , No. fear retaliation by Mammolito for their complaints, 03 Civ. 2598 (GBD) (AJP), 2005 WL 407646, at including evidence that Mammolito ignored *23 (S.D.N.Y. Feb. 22, 2005) (“[A]n employer multiple complaints about Sessa, who was also his cannot be held liable . . . for an employee’s son-in-law. See Leopold v. Baccarat, Inc. , 239 discriminatory act unless the employer became a F.3d 243, 245 (2d Cir. 2001) (stating that the party to it by encouraging, condoning, or approving employee must show a “credible fear that her it.”) (citations and internal quotation marks complaint would not be taken seriously or that she omitted). In any event, the Court finds that would suffer some adverse employment action as a plaintiffs have set forth sufficient evidence to meet result of filing a complaint”) (quoting Caridad , 191 this heightened standard. Here, there are genuine F.3d at 295). issues of material fact as to whether Thomas Dodge “had knowledge of and acquiesced in, or
[7] The Court notes that a higher standard may apply subsequently condoned, the discriminatory under NYSHRL for imputation of liability to the conduct,” Rotary , 297 F. Supp . at 661, for the employer in the context of a hostile work reasons discussed supra . environment claim. See EEOC v. Rotary Corp.,
[8] Retaliation claims under the NYSHRL, like 297 F. Supp. 2d 643, 661 (N.D.N.Y. 2003); see also Int’l Healthcare Exch., Inc. v. Global hostile work environment claims, are generally Healthcare Exch., LLC , 470 F. Supp. 2d 345, 361 governed by the same standards as federal claims (S.D.N.Y. 2007) (“[C]ourts have applied a stricter under Title VII. See Schiano v. Quality Payroll standard under the state and local human rights Systems, Inc. , 445 F.3d 597, 609 (2d Cir. 2006).