Strauss v. New York State Department of Education
805 N.Y.S.2d 704
N.Y. App. Div.
2005
Check Treatment

Suzanne R. Strauss, Appellant, v New York State Department of Education et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York

December 15, 2005

805 N.Y.S.2d 704

APPEARANCES OF COUNSEL

Tobin & Dempf, L.L.P., Albany (Kevin A. Luibrand of counsel), for appellant.

Eliot Spitzer, Attorney General, Albany (Frank K. Walsh of counsel), for New York State Department of Education and another, respondents.

Peter Henner, Clarksville, for Edward Drago, respondent.

OPINION OF THE COURT

SPAIN, J.

Plaintiff was an employee of defendant State Education Department (hereinafter SED) whose job responsibilities between 1995 and 2002 included reviewing and approving certain aspects of the apprenticeship programs established under Labor Law article 23. By statute, SED and defendant Department of Labor (hereinafter DOL) share the role of administering these programs (see Labor Law §§ 811, 812; 12 NYCRR 601.5). In carrying out her duties, it was necessary for plaintiff to interact with DOL‘s Director of Employability Development, defendant Edward Drago, who administered and supervised the apprenticeship programs established by DOL.

Beginning in 2000, Drago allegedly began making sexual comments to and about plaintiff, including disparaging, gender-related remarks about her professional ability. Plaintiff reported Drago‘s behavior to her superiors at SED and filed an SED discrimination and harassment complaint, as well as a complaint with the Division of Human Rights. The Inspector General‘s office led the investigation into plaintiff‘s allegations; it ultimately issued a report on August 15, 2002, finding that Drago had created an intimidating and unprofessional work environment and interfered with the working relationship between plaintiff and DOL by “engag[ing] in a pattern of conduct that included recurrent explicit, hostile, vulgar, offensive and often demeaning comments based upon gender, and in some cases, the ethnicity of other state employees, including [plaintiff].” DOL reassigned Drago while conducting a supplemental investigation and, in the end, formally counseled him and placed a memorandum in his personnel file, but restored him to his prior position. SED then reassigned plaintiff in order to avoid further contact with Drago.

Thereafter, plaintiff commenced this action claiming a violation of title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.) and the Human Rights Law (Executive Law § 296). Defendants successfully moved for summary judgment, prompting this appeal by plaintiff. We now affirm.

As an initial matter, we are unpersuaded by Drago‘s argument on appeal that plaintiff‘s claims are barred by title VII‘s 300-day limitations period (see 42 USC § 2000e-5 [e] [1]).

“[I]n the case of a hostile work environment claim, the statute of limitations requires that only one sexually harassing act demonstrating the challenged work environment occur within 300 days of filing; once that is shown, a court and jury may consider ‘the entire time period of the hostile environment’ in determining liability” (, quoting ; see , cert denied ).

Plaintiff filed her discrimination claim with the Division of Human Rights on November 16, 2001; thus, it was incumbent upon plaintiff to allege at least one act of sexual harassment occurring after January 20, 2001. Plaintiff presented evidence that Drago referred to her, in the presence of other DOL employees, in sexually offensive terms at the State Apprenticeship and Training Council held in July 2001. Accordingly, we hold that plaintiff‘s claims were timely made.

Turning to the merits, to recover under either title VII or New York‘s Human Rights Law, a plaintiff must demonstrate that he or she had an employment relationship with the defendant employer (see , cert denied ; ).1 Here, plaintiff proceeds against SED and DOL, collectively, solely on the theory that for the purposes of determining liability under title VII and the Human Rights Law, the two agencies can be considered a single employer—creating an employment relationship between herself, Drago and both agencies—by virtue of the responsibility shared by SED and DOL for the apprenticeship program.2

For purposes of recovery under title VII, a plaintiff may claim to be the employee of more than one entity; a parent corporation, for example, can be held liable for the title VII violations of its subsidiaries under a single-employer theory of recovery (see e.g. ; see also 42 USC § 2000e [a], [b]). In determining whether it is appropriate to treat a parent and subsidiary as a single employer, the courts have applied a four-part test requiring evidence of “(1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control” (, quoting ; accord ). In several jurisdictions, this test also has been applied to determine title VII liability for public entities under the single-employer theory (see e.g. [examining the relationship between city and a regional emergency communications center]; [relationship between booster association and school district]; [relationship between county and state courts]; , cert denied [relationship between city and private, not-for-profit charitable corporation]; [relationship between city and a private, independent contractor]; [relationship between state agency and municipality]).

On the other hand, some precedent supports eschewing the four-part test when public employers are involved in favor of an approach which affords deference to governmental subdivisions established by state law. For example, in the related context of determining whether the employees of a city and a city redevelopment agency could be aggregated for the purposes of establishing the minimum number of employees necessary to establish title VII coverage, the Eleventh Circuit adopted the following approach:

“[W]e begin with the presumption that governmental subdivisions denominated as separate and distinct under state law should not be aggregated for purposes of Title VII. That presumption may be rebutted by evidence establishing that a governmental entity was structured with the purpose of evading the reach of federal employment discrimination law. Absent an evasive purpose, the presumption against aggregating separate public entities will control the inquiry, unless it is clearly outweighed by factors manifestly indicating that the public entities are so closely interrelated with respect to control of the fundamental aspects of the employment relationship that they should be counted together under Title VII” ().

In the instant case, Supreme Court applied the more deferential test articulated in Lyes, concluding that SED and DOL were not sufficiently interrelated to overcome the presumption of separateness.

We find the broader four-part test and the Lyes approach, at least as applied in this context, to be reconcilable. Whether we begin with the rebuttable presumption articulated in Lyes, or simply place the burden on plaintiff to demonstrate under the broader four-part test that the agencies should be treated as a single employer, we ultimately devolve to the same inquiry and, under the factual circumstances presented here, reach the same result. The four-part test was originally sanctioned for use by the National Labor Relations Board as a means of ascertaining whether two entities constituted a single employer in the context of labor disputes (see ). As thereafter applied in the title VII context, the second factor—centralized control of labor relations—has become the focus of the inquiry, such that “the critical question to be answered then is: What entity made the final decisions regarding employment matters related to the person claiming discrimination?” (, quoting ). Arguably, this same query could be used to determine, under the Lyes analysis, whether the two entities are sufficiently “interrelated with respect to control of the fundamental aspects of the employment relationship” (see ).

Here, we have governmental agencies that are essentially horizontally situated; DOL is established pursuant to Labor Law article 2 and SED is an agency established under the Education Law and governed by the Board of Regents (see Education Law § 101). Thus, there is no direct correlation to the parent/subsidiary context explored in the private sector. In describing the apprenticeship program, plaintiff has depicted a bridge between the two agencies, a program in which SED and DOL each had discrete responsibilities in achieving a common goal, but failed to offer any evidence that, through her work on the program, DOL obtained any control over or responsibility for her employment. No evidence exists that Drago or DOL had any authority to hire, transfer, promote, discharge or discipline plaintiff. In our view, the creation by the Legislature of a program that utilizes the talents of two distinct agencies to realize a singular goal does not, without more, merge the agencies for title VII purposes. Accordingly, even if we were to adopt the four-part test advocated by plaintiff, we would find that she had not demonstrated that SED and DOL can be treated as a single employer for purposes of determining liability under title VII and the Human Rights Law.

Supreme Court also properly dismissed plaintiff‘s title VII claims against Drago, as “individuals are not subject to liability under Title VII” (, quoting ; see , abrogated on other grounds by ). Plaintiff essentially concedes as much, directly challenging on appeal only the dismissal of her claim against Drago under the Human Rights Law (see Executive Law § 296). The Court of Appeals has held that individuals will not be subject to suit under the Human Rights Law unless they are “shown to have any ownership interest or any power to do more than carry out personnel decisions made by others” (). However, in , the Second Circuit carved out an exception to this rule, holding that under Executive Law § 296 (6), which provides that “it shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so,” an individual “who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the [Human Rights Law]” (; see also ; ; but see [declining to follow Tomka, reasoning that “(t)o find a coemployee liable as an aider and abettor would ignore the statutory and legal authority limiting the parties who may be sued for employment discrimination“]; [same]).

Even were we to follow Tomka and recognize the possibility that a coworker could be liable—under an aiding or abetting theory—for his or her direct participation in any of the activities proscribed by the Human Rights Law, we would nonetheless affirm in light of our conclusion that plaintiff has failed to present a cognizable legal basis for holding either SED or DOL liable. Where no violation of the Human Rights Law by another party has been established, we find that an individual employee cannot be held liable for aiding or abetting such a violation. In other words, we hold that individuals cannot be held liable under Executive Law § 296 (6) for aiding and abetting their own violations of the Human Rights Law (see ; ; cf. ; ).

Crew III, J.P., Peters, Carpinello and Kane, JJ., concur.

Ordered that the order is affirmed, without costs.

Notes

1
“The standards for recovery under the New York State Human Rights Law are the same as the federal standards under title VII of the Civil Rights Act of 1964” ( [citations omitted]).
2
Notably, plaintiff does not advance a theory to hold her employer, SED, accountable for the acts of Drago as a nonemployee (but see [identifying, but not deciding, the possibility that employers owe a duty to employees who are subjected to harassment by nonemployees]). Accordingly, we will not address that issue.