Opinion
00 Civ. 2438 (GEL)
February 23, 2001
Michelle L. Fliegel, Goldberg Fliegel, (Kenneth A. Goldberg, Goldberg Fliegel, New York, NY, of counsel for Plaintiff.
Laura Sack, Kauff, McClain McGuire, Kenneth A. Margolis. Kauff, McClain McGuire, New York, NY. of counsel for Defendant
OPINION AND ORDER
Plaintiff, Renita Brice. is a former employee of defendant S.O.S. Security Incorporated ("SOS"), a private security firm providing security services to several hundred clients, including defendant Viacom, Inc. She brought this action against her former employer, two related entities, and her supervisor, Alix Frederic, alleging sexual harassment and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law and the New York City Human Rights Law. The Complaint also charged Viacom, under joint employer (Title VII) and aiding and abetting (New York State and City Human Rights Law) theories of liability, Viacom promptly moved to dismiss the Complaint against it. Judge Buchwald denied the motion, without prejudice to its renewal after limited discovery on the issue of Viacom's involvement in Brice's termination. After the completion of discovery, Brice voluntarily dismissed all claims against Viacom except those based on aiding and abetting liability under New York State and New York City law. Viacom now moves for summary judgment on these remaining claims. This Court having heard oral argument from both parties on February 2, 2001, and having carefully considered the parties' submissions, Viacom's motion is granted.
Except as otherwise indicated, the following facts are drawn from the parties' statements of fact submitted pursuant to Local Rule 56.1.
Brice was hired by SOS in or about October 1998, and assigned to the Viacom premises located at 1633 Broadway in Manhattan to input payroll information regarding SOS employees. in April 1999, she was transferred by SOS to another Viacom facility located at 1515 Broadway, where she worked as a full time security guard until her discharge in July 1999.
It is undisputed that Brice was trained and supervised by SOS, and that she received all her salary, wages and benefits from SOS. Her employment relationship was governed by a collective bargaining agreement between the Special and Superior Officers Benevolent Association and SOS. Brice received no compensation or benefits from Viacom and was not on Viacom's payroll. Viacom's sole authority over Brice was its contractual right to reject any security personnel assigned by SOS to its premises.
This lawsuit grows out of a series of incidents between Brice and Frederic, the SOS Site Commander at Viacom's 1515 Broadway premises. Brice alleges, and for the purposes of this motion for summary judgment it is not disputed, that Frederic made unwanted sexual advances and suggestions to Brice on several occasions while she worked under his supervision. Frederic also apparently told Brice that if she complained he would have Viacom get rid of her.
On or about June 28, 1999, Brice complained to SOS management that Frederic had sexually harassed her. Tyrus Minier, the SOS Site Supervisor assigned to 1515 Broadway reported her complaint to Viacom's Vice President of Security and Investigations, John Hanovic. Hanovic reviewed certain relevant documents with Minier, and concluded that Brice's charges were serious. Accordingly, he requested that senior SOS management handle the investigation. Hanovic subsequently discussed Brice's complaint directly with Barry Frank, the Executive Vice President and General Counsel of SOS. and asked to be informed of the results of any investigation. By letter dated July 8, 1998, Frank informed Hanovic of the results of its investigation (see Fliegel Aff. Ex. 12), and Hanovic later spoke with Frank about the matter. SOS claimed that it was unable to substantiate Brice's allegations. Upon conclusion of its inquiry, however, SOS granted Frederic's request for a transfer from Viacom's 1515 Broadway premises to another location. SOS transferred him on special assignment to a facility at 770 Broadway, and at the conclusion of that assignment he was permanently transferred to 1633 Broadway. Frederic was later removed from this latter site when he was found sleeping on the job by a Viacom employee stationed on the premises.
Brice was eventually fired by SOS, purportedly for reasons unrelated to her complaints of sexual harassment. The parties disagree about the date on which SOS fired Brice, and about the reasons for that action. SOS claims that Brice was removed from Viacom's facility on July 21, 1999, following the discovery of a number of procedural irregularities by Brice during an allegedly routine patrol audit performed by SOS on July 20, 1999. (See Fleigel Aff. Ex. 13.) Minier testified that these irregularities amounted to "severe problems with her paperwork, patrol patterns and discrepancies [sic)." (See Minier Dep. at 25.) According to SOS, it planned to reassign her to another client, until July 28, 1999, when evidence emerged suggesting that she had made unauthorized phone calls while at Viacom. (See Fliegel Aff. Ex. 7, 9.)
Nothing in the record indicates that Hanovic, or for that matter anyone else at Viacom, was involved in the initial internal audit, and Brice has never alleged that Viacom was involved. Viacom was, however, the moving force in the investigation of the unauthorized calls. On July 28, Minier received information from Viacom's Manager of Security and Investigations, Mark Kijas, regarding a pending investigation initiated by Viacom's Telecommunications Department concerning a number of unauthorized long-distance phone calls to Ghana from Viacom's phones, for which Viacom was billed over $500. (See Fliegel Aff. Ex. 14.) After cross-referencing the call logs with security personnel logs, Kijas determined that the SOS security officer at post 105 was consistently in the area of the phone from which the unauthorized calls were placed. (See id. Exs. 14, 15.) Moreover, on several days calls were apparently made from the same extension to Brice's home residence immediately before or after the international calls were made. (See id. Ex. 14.) Accordingly, on that same day, after identifying Brice as the guard stationed at post 105, SOS terminated her.
Brice, for her part, insists that she worked at the 1515 Broadway premises until she was fired on July 26, 1999. She vigorously denies SOS's assertion that she was not terminated until July 28, 1999. (See Fliegel Aff. Ex. 19 ¶ 9.) Brice contends that she was fired in retaliation for complaining about Frederic's harassment, and that the alleged audit irregularities and unauthorized calls were mere pretexts. She denies making the calls and argues that Viacom concocted that charge to help SOS dispose of her.
Procedural History
Following her termination by SOS, Brice filed a charge of discrimination with the EEOC on August 16, 1999, amended on February 23, 2000, alleging that SOS and Viacom had fired her in retaliation for her complaints of sexual harassment. The EEOC issued a "Right to Sue" letter on March 14, 2000, and Brice sued two weeks later. Her Complaint alleged severe and pervasive sexual harassment by Frederic, and retaliatory firing. The Complaint also charged Viacom with liability both as a joint employer under Title VII of the Civil Rights Act of 1964 and as an aider and abetter under the New York State and City Human Rights Laws.
On May 5, 2000, Viacom moved to dismiss, inter alia, for failure to state a claim against it. Viacom argued that it was not a joint employer of Brice, since SOS was an independent contractor and Brice was employed solely by SOS. Viacom also argued that it could not be found to have aided and abetted SOS because Brice had not alleged that Viacom actually participated in any of the alleged discriminatory acts. The parties appeared on August 16, 2000, before Judge Buchwald, who denied defendant's motion to dismiss. (See 8/16/00 Tr. 2.) Judge Buchwald indicated that she tended to agree with Viacom's position, but ruled that a determination of Viacom's involvemeut in Brice's firing required resolution of factual issues that could only be clarified through discovery. (See id.) She therefore denied Viacom's motion and ordered limited discovery on the issue of its role in Brice's termination. (See id. 2-3, 18.)
This case was transferred to me on September 13, 2000, in the midst of the discovery period ordered by Judge Buchwald. Brice has now deposed Bruce Ettman, outside counsel to SOS who implicated Viacom in Brice's firing. She has also deposed Hanovic and the three SOS employees allegedly involved in the decision to fire her (Frank, Minier and Everton Piggott). In addition, SOS and Viacom have each turned over approximately 500 pages of documents, including the records in Viacom's possession relating to the investigation of the unauthorized telephone calls. Upon completing discovery, Brice dropped all claims against Viacom except the claims for aiding and abetting liability under the New York State and City Human Rights Laws. Viacom has now moved for summary judgment on these claims.
Discussion
1. Standards for Summary judgment.
Summary judgment may only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(b). The party opposing summary judgment "may not rest upon mere allegations or denials"; rather, it must "set forth specific facts showing that there is a genuine issue for trial." Id. 56(e). To defeat a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 1986). "[I]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Similarly, a party cannot defeat summary judgment by "offering purely conclusory allegations of discrimination," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), or by offering evidence in opposition that is merely speculative. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116-1117 (2d Cir. 1988). Accordingly, to defeat summary judgment the party opposing summary judgment must set forth concrete particulars" showing that a trial is needed. R.G. Group. Inc. v. Horn Hardart Co. 751 F.2d 69, 77 (2d Cir. 1984).
II. Aiding and Abetting Liability under the New York State Human Rights Law
The New York Human Rights statutes provide that it is unlawful for a person "to aid, abet, incite, compel, or coerce" any conduct prohibited by the statute. N.Y. Exec. Law § 296(6); see also N.Y.C. Admin. Code § 8-107(6) (same). Courts have interpreted this language to require a showing that the defendant actually participated in the conduct giving rise to the claim of discrimination See Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995); Sowemimo v. D.A.O.R. Sec., Inc., 43 F. Supp.2d 477, 487 (S.D.N.Y. 1999); Melendez v. Int'l Serv. Sys. Inc., No. 97 Civ. 8051, 1999 WL 187071, at 14 n. 13 (S.D.N.Y. April 6, 1999). Aiding and abetting liability requires that the aider and abettor "share the intent or purpose of the principal actor, and there can be no partnership in an act where there is no community of purpose." New York Times Co. v. City of New York. Comm'n on Human Rights, 79 Misc.2d 1046, 1049, 362 N.Y.S.2d 321, 324 (Sup.Ct. 1974), aff'd, 49 A.D.2d 851, 374 N.Y.S.2d 9 (1st Dep't 1975), aff'd, 41 N.Y.2d 345, 361 N.E.2d 963, 393 N.Y.S.2d 312 (1977) (quotations and citation omitted) (applying the New York City Human Rights Law). Consequently, to find that a defendant actually participated in the discriminatory conduct requires a showing of "direct, purposeful participation." Cerrato v. Durham, 941 F. Supp. 388, 396 (S.D.N.Y. 1996).
It is precisely such intentional and purposeful participation by Viacom that is missing. Here, it is undisputed that the only individual involved in the sexual harassment of Brice was an SOS employee, Frederic. Accordingly, Brice predicates aiding and abetting liability against Viacom not upon any involvement in Frederic's alleged misconduct, but upon its involvement in SOS's alleged decision to fire her in retaliation for her complaints. Specifically, Brice has charged that Hanovic directed the investigation into her complaints of sexual harassment and provided the pretext for her termination. The record does not, however, contain any evidence that would permit a jury to find that Hanovic or Viacom did anything with a purpose to assist SOS in discriminating or retaliating against Brice.
The uncontradicted testimony of witnesses with knowledge of the firing, including Hanovic, indicates that the only people involved in the decision to terminate Brice were Minier and Piggott, two SOS employees. (See Hanovic Dep. at 190; Frank Dep. at 179; Minier Dep. at 24-5, 47; Piggott Dep. at 24.) Both of them have testified that Brice was removed from Viacom's premises on July 21, 1999, because of her failure to follow established security procedures as revealed in a putatively "routine" audit conducted the previous day. (See Minier Dep. at 24-5; Piggott Dep. at 25.) Documentary evidence corroborates their testimony. (See Fliegel Aff. Ex. 13.) While the timing of this purported audit might be suspect, and the pending action against SOS may yet reveal it to have been pretextual, it is undisputed that Viacom played no role in the audit.
Brice argues that Viacom was implicated in the investigation into her allegations of sexual harassment, in that Hanovic, Viacom "s Vice President of Security and Investigations, allegedly oversaw that inquiry. Nevertheless, Brice's contentions about Hanovic's role in the investigation are undercut by the very evidence that she points to.
Hanovic's role in the investigation was, so far as the evidence reveals, extremely modest. The record indicates that Brice initially complained to SOS management, who, through Minier, in turn reported her complaint to Hanovic. (See Minier Dep. at 43; Hanovic Dep. at 148-50.) According to Hanovic's uncontradicted testimony, the extent of his input was to request that senior SOS management handle the investigation since the allegations appeared to be "pretty serious." (Hanovic Dep. at 151.) He further testified that the only other communication that he had with SOS concerning the investigation prior to its conclusion was a discussion of Brice's complaint with Frank, SOS's general counsel, shortly after his conversation with Minier. (See id. at 163-5.) At that time, according to Frank, Hanovic asked SOS to keep him abreast of the results of the investigation. (See Frank Dep. at 115.) At the conclusion of the investigation, Frank wrote to Hanovic in his capacity as Vice President of Security and Investigations informing him that SOS's investigation had failed to confirm Brice's allegations. (See Fliegel Aff. Ex. 12; Hanovic Dep. at 164-5.) Brice characterizes Hanovic's involvement as supervision and oversight of the investigation; however, there is no evidence that he played anything but a passive liaison role. Nor is there any plausible basis for a fact finder to reject the uncontradicted testimony of Hanovic and SOS officials. Accepting, arguendo, Brice's assertion of friendship between Hanovic and Frederic (see Pl. Mem. Opp. at 5 n. 6), that relationship, in the absence of any' corroborating evidence, cannot support an inference that Hanovic played a more active role. In short, there is nothing on this record that suggests anything untoward about Hanovic's involvement in SOS's investigation.
The only other colorable evidence that Brice provides of Viacom's participation in her termination is its alleged contractual right to request the transfer or removal of any SOS employee assigned to its facilities, and its exercise of these rights to request the removal of several SOS employees, including Frederic himself. (See Pl. Mem Opp. at 14.) Even if a request to remove an employee is equivalent to involvement in that employee's termination (and there is considerable doubt that this is so), such a general right does not speak to whether Viacom actually participated in the decision to fire Brice in this particular instance. The record contains no evidence that it did.
In addition, Brice argues that Viacom's involvement in Brice's termination is demonstrated by a letter from SOS's lawyer, Bruce Ettman to the EEOC, dated October 18, 1999, responding to the allegations of sexual harassment and retaliation contained in Brice's charge of discrimination. (See Fliegel Aff. Ex. 7.) In that letter, Ettman argued to the EEOC that SOS had removed Brice from the building on July 21, 1999, at the request of Viacom. (See id. at 2.) Ettman further claimed that SOS had not fired Brice on July 21, but had only removed her from Viacom's facilities, and had subsequently sought to reassign her. It was only on or about July 28, 1999, after she had been identified as the perpetrator of certain unauthorized long-distance phone calls, that SOS terminated her. (See id.)
Brice argues that the Ettman letter reveals a factual dispute sufficient to defeat summary judgment for two reasons. First, she argues that the letter contains clear evidence that Viacom was involved in the decision to fire her. Second, she argues that even if Viacom was not involved in the decision to fire her, the explanation that Brice was fired for making unauthorized phone calls is clearly pretextual since, she claims, she was fired prior to the discovery of those calls. Brice insists that by conducting the investigation that provided SOS with a pretext to fire her. Viacom exposed itself to aiding and abetting liability.
Ettman's letter. however, cannot create an issue of fact as to Viacom's involvement in Brice's firing. First. Ettman's letter itself is hearsay as to Viacom. At oral argument, plaintiffs counsel argued that Ettman's letter constituted an admission of Viacom's role in Brice's firing. (See 2/2/01 Tr. 13-5.) The argument is unsound. Ettman was and is counsel to SOS, not Viacom, and thus has no authority to speak for the latter. See FED. R. EVID. 801(d)(2)(C), (D). Far from having any indicia of reliability, the letter was created on behalf of a party who had every motive to shift responsibility from itself to Viacom. Moreover, Ettman himself played no role in the firing of Brice, and thus had no first-hand knowledge of the events described in the letter. Second. Ettman himself has now retracted that statement as mistaken. On November 11, 1999, just three weeks after the original letter was written, he wrote a second letter to the EEOC retracting his statement that Viacom had requested Brice's removal, and stating instead that SOS alone had decided to remove Brice after a routine patrol audit had revealed significant breaches in procedure. (See Fliegel Aff. Ex. 9.) In an affidavit submitted along with Viacom's motion to dismiss, Ettman testified under oath that his original statement to the EEOC regarding Viacom's involvement had been a mistake. (See id. Ex 24 ¶ 2.)
Brice has argued that these retractions must be regarded with suspicion because they occurred only after plaintiff's counsel had served a demand letter upon Viacom seeking settlement. (See id. Ex. 8.) Brice claims that such a retraction made under threat of a lawsuit raises a strong inference that, despite Ettman's vigorous denials, Viacom was involved in the decision to terminate Brice. She is mistaken. While the circumstances surrounding Ettman's retraction raised a plausible basis for discovery into Viacom's involvement, it is now incumbent upon Brice to provide admissible evidence of that involvement. She has conspicuously failed to do so. Discovery having been completed, no evidence whatsoever has been uncovered that supports Ettman's original letter. All parties in the firing have been deposed, and none of the five depositions taken have produced the slightest evidence that Viacom was involved in the decision to terminate Brice.
Moreover, the three individuals involved in the drafting, and subsequent correction, of the October letter (Ettman, Frank and Minier) testify consistently, and without contradiction, as to how the letter came to be written and corrected. According to their testimony, Minier had been solely responsible for the decision to remove Brice from 1515 Broadway. (See Minier Dep. at 24; Frank Dep. at 179.) His initial review of Ettman's draft of the letter to the EEOC had been cursory. (See Minier Dep. at 23.) Later, without any contact with Viacom, he found a final draft of the letter while cleaning up his office, and upon closer inspection found the letter to be inaccurate. (See Minier Dep. at 30-1; Frank Dep. at 180; Ettman Dep. at 111-12.) He subsequently contacted Frank and informed him of the error. (See Minier Dep. at 30; Ettman Dep. at 112.) Frank then contacted Ettman, who drafted the November 11, 1999, corrective letter to the EEOC, again without any input from Viacom. (See Frank Dep. at 182; Ettman Dep. at 110.) Thus, while SOS's shifting accounts of the firing of Brice may raise significant issues as to its good faith, the simple fact is that no competent witness testifies to any involvement of any Viacom employee either in Brice's firing, or in the retraction of the statement in the October Ettman letter implicating Viacom.
Brice's argument that Viacom provided SOS with a pretext for her firing by identifying her as the most likely perpetrator of the unauthorized phone calls is similarly unavailing. SOS claims that Brice was removed from Viacom's 1515 Broadway facilities on July 21, 1999, but that she was not fired until July 28, 1999, after evidence of her unauthorized use of the phones came to light. Brice flatly denies responsibility for these alleged unauthorized phone calls, but argues that even if she made the calls, this could not have been the real reason behind her termination because she was fired before the calls were discovered. She argues that SOS fired her in retaliation for complaining of sexual harassment and then used a variety of manufactured charges to justify their actions, including accusing her after the fact of making the unauthorized phone calls.
Had Viacom intentionally provided SOS with a pretext, it would be guilty of aiding and abetting SOS. To establish this, however, would require a showing that Viacom knowingly manufactured evidence against Brice. which it then provided to SOS in order to help SOS retaliate against her. Even if, as Brice claims, Viacom wrongly identified her as the primary suspect, she could not establish aiding and abetting liability against it without some evidence of an intent to aid discrimination. The record is devoid of any such evidence.
At oral argument, counsel for the plaintiff argued that such a nefarious motive could be inferred from Hanovic's involvement in the investigation that identified Brice, since he might have wanted to protect his friend, Frederic, or just to get rid of Brice, who he perceived as a trouble maker. (See 2/2/01 Tr. 12-13.) There is, however, scant evidence that Hanovic even knew that Brice was one of the primary suspects until after others at Viacom had looked into the matter and turned the information over to SOS. The unauthorized phone calls were initially discovered by Viacom's Telecommunications Department, who contacted Hanovic. He then turned over the records of the calls to his Manager of Security and Investigations, Mark Kijas. (See Hanovic Dep. at 215; Minier Dep. at 50.) At this point, there was no indication of who made the calls. Upon looking into the matter, Kijas noticed a pattern and determined that the security officer at post 105 was consistently in the area of the phone from which the unauthorized calls were placed, and that on several days calls were apparently made from the same extension to Brice's residence immediately before or after the intentional calls were made. (See Fliegel Aff. Exs. 14, 15; Hanovic Dep. at 215-6; Minier Dep. at 50.) Kijas then forwarded the results of his investigation to both Hanovic and Minier. (See Fliegel Aff. Exs. 14, 15.) While this evidence indicates that Kijas probably knew that Brice was stationed at post 105, and was therefore the primary suspect, Hanovic played no role in the actual investigation, and there is no basis for an inference that he ever knew that Brice was a primary suspect until after the fact. Consequently, he could not have helped SOS to engineer evidence against her. Indeed, the only Viacom employee who could have assisted in framing Brice is Kijas, who actually investigated the matter.
Even if Viacom, through Kijas, did know that Brice was the primary suspect, there is no basis for concluding that it intended to provide an excuse to SOS by pointing the finger at Brice. There is no apparent reason for Kijas to have wanted to aid SOS, and Brice has not provided one. While Viacom's investigation might not have covered all bases, and indeed might have come to the wrong conclusion, this is insufficient to establish bad faith on the part of Viacom. That SOS may have used that information to bolster its allegedly pretextual grounds for terminating Brice does not make Viacom liable for aiding and abetting, absent affirmative evidence that Viacom knew that it would do so. In investigating the unauthorized calls, Viacom seems to have taken perfectly conventional steps in identifying potential suspects. It then handed that information to SOS, which concluded the investigation and decided to blame Brice. SOS alone bears the responsibility for what it did with the information. In short, while there is evidence suggesting that SOS's proffered reason for terminating Brice might have been pretextual, there is simply no evidence suggesting that Viacom assisted SOS in concocting such a pretext.
Since there is no evidence in that Viacom was actually involved in any retaliatory conduct against Brice, summary judgment in favor of Viacom is warranted.
CONCLUSION
Defendant Viacom's motion for summary judgment is granted, and judgment will be entered for the defendant on all remaining causes of action.