Opinion
718697/2018
08-05-2019
Gail PALMER, Plaintiff, v. Vivian COOK, individually and in her official capacity as New York State Assemblywoman, The New York State Assembly, and Reginald Chalmers, individually and in his capacity as an employee of Assemblywoman Cook, Defendants.
The following e-filed papers numbered 11-16, 27-29 and 36 submitted and considered on this motion by defendant the New York State Assembly, (hereinafter referred to as "Defendant") seeking an Order pursuant to Civil Practice Law & Rules (hereinafter referred to as "CPLR") 3211 (a)(2), (a)(5) and (a)(7) dismissing plaintiff GAIL PALMER's, (hereinafter referred to as "Plaintiff") Complaint in its entirety with prejudice and for such other and further relief as this Court deems just and proper.
Papers Numbered
Notice of Motion- Memo of Law- Affirmation-Exhibits EF 11-19
Memo of Law in Opposition-Affidavit-Exhibits EF 27-29
Reply Memorandum of Law EF 36
The facts are alleged as follows: this action arises out of an employment relationship between Plaintiff and named defendant VIVIAN COOK (hereinafter referred to as "Cook"). Plaintiff is an African American woman over the age of 40 years old. Cook is an elected official of the Defendant. Plaintiff was employed by Cook from January 1, 2006 to May 19, 2006 (hereinafter referred to as the "2006 Employment") at which time her salary was $36,000 per annum. Plaintiff resigned from her position in May of 2006 due to a hostile and intimidating work environment created by Cook. Specifically, during that time Cook cursed at and excoriated her and her co-workers. Additionally, Cook directed multiple derogatory racial epithets towards Plaintiff, despite Plaintiff's regular requests that Cook refrain from doing so.
Subsequently, in 2010 Cook solicited Plaintiff to return to work at her office. Plaintiff agreed to take the position claiming that the comprehensive medical benefits were appealing to her and her family because her husband was chronically ill and totally disabled. Plaintiff worked for Cook from April 30, 2010 until December 31, 2016 (hereinafter referred to as the "2010- 2016 Employment"), at that time Plaintiff's salary was $30,000. According to Plaintiff, the $6,000 difference in her pay was due to Plaintiff's need to leave work at 4 P.M. as opposed to 5 P.M. However, Plaintiff still worked an eight (8) hour work day.
At this time, Plaintiff's job duties included: "interfacing with constituents, performing research, representing the Member, tracking legislation, maintaining responsibility for constituent services, maintaining files, performing routine office tasks, maintaining the Member's calendar and making appointments, media liaison and outreach, and other related duties".
Plaintiff claims during her 2010-2016 Employment Cook's actions remained unchanged. Plaintiff contends that Cook directed racial slurs and epithets towards her. Furthermore, Cook questioned whether Plaintiff's husband was actually sick. During her 2010-2016 Employment the named defendant REGINALD CHALMERS (hereinafter referred to as "Chalmers") began working at the office. Chalmers is allegedly Cook's grandson. Plaintiff claims Chalmers received full pay while working less than the forty (40) hours that his position required.
Plaintiff claims that Chalmers was volatile and targeted her because of her gender and her sick husband. On one occasion, Chalmers became aggressive and agitated because Plaintiff did not bring him McDonald's breakfast. According to Plaintiff, Chalmers began to yell obscenities and became loud and verbally abusive towards Plaintiff. In response, Plaintiff began to shake. Cook witnessed the incident but took no action. As a result, Plaintiff left work and reported the incident to Kathleen Joyce the director of human resources for Defendant (hereinafter referred to as "Joyce"). In or around August of 2015, Plaintiff filed an internal harassment and discrimination complaint against Chalmers. Defendant, through Joyce, informed Plaintiff that the incident would be investigated with the help of outside counsel.
During the investigation Plaintiff was placed on administrative leave. Plaintiff could not return to work until it was deemed advisable by the mutual agreement of Cook, Defendant and the aforementioned outside counsel.
Plaintiff received a letter from Defendant on August 27, 2015 (hereinafter referred to as the "August Letter"). The August Letter set forth a plan to prevent retaliation. In sum, the letter directed that all members of the office were to interact with each other professionally, that any complaints resulting from divergence from the plan were to be sent to either Cook or Defendant. In part, the August Letter stated "[i]n its efforts to create a workplace free from unlawful discrimination and harassment, the Assembly is committed to maintaining the highest standards of ethical conduct from its employees...".
Plaintiff received another letter from Defendant on September 8, 2015 (hereinafter referred to as the "September Letter"). The September Letter indicated that Chalmers' actions were deemed not in violation of Defendant's policy. However, the letter also indicated that the investigation did conclude a "heated exchange" occurred and "... any attempt at retaliation against any party is expressly forbidden by the Assembly's policy, and subject to censure."
Plaintiff returned to work at the conclusion of the investigation and alleges the work environment remained hostile and that she experienced retaliatory behavior. Prior to Plaintiff's return, Cook had the locks to the office changed and refused to give Plaintiff a key. Thereby, requiring Plaintiff to wait for another co-worker to arrive in the morning in order to gain access to the office. Plaintiff claims Cook directed racially profane statements towards her. On one occasion, Plaintiff's decision to wear, what she describes as, a "sleeveless but professional tailored dress" sparked multiple derogatory insults from Cook.
At this time, Plaintiff's husband needed to begin chemotherapy. Plaintiff requested to use her vacation time on eight (8) consecutive Friday's to bring him to chemotherapy. Initially, Cook agreed that Plaintiff could leave the office between 10 a.m. and 2 p.m. on those days. However, Plaintiff claims after taking her husband to his second Friday chemotherapy appointment Cook refused to allow her to take him to the remaining six. As a result, Plaintiff claims she had to "scramble" to have family members accompany her husband to those visits.
Subsequently, Plaintiff's husband was placed on hospice care. Plaintiff claims Cook made negative comments about Plaintiff's husbands health, comments that induced fear, anxiety and pain in Plaintiff. On September 4, 2016, Plaintiff's husband passed away. Plaintiff requested that Cook not attend the service at Plaintiff's home to which Cook complied. Plaintiff requested five (5) extra days for bereavement which Cook denied. Plaintiff called Defendant seeking to learn of a way to overturn Cook's denial but was told that the decision was solely within Cook's discretion.
Ultimately, Cook declined to renew Plaintiff's appointment for 2017.
On December 7, 2018, Plaintiff instituted this action by filing a Summons and Complaint. Plaintiff's causes of action are as follows: discrimination, retaliation and hostile work environment pursuant to New York City Administrative Code § 8-107 (hereinafter referred to as "NYCHRL"), discrimination, retaliation and hostile work environment pursuant to New York State Executive Law § 296 (hereinafter referred to as "NYSHRL"), violation of New York State Public Officers Law § 73 and intentional infliction of emotional distress.
CPLR 3211 (a)(2)CPLR 3211 (a)(2) states as follows:
(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
2. the court has not jurisdiction of the subject matter of the cause of action; or
Defendant argues Plaintiff's NYCHRL, Public Officers Law § 73 and intentional infliction of emotional distress claims are barred.
NYCHRL
In Emengo v. State of New York (2015 WL 5915286 *3 [Sup. Ct. NY County October 9, 2015 No. 150733/2013] ) the court states that the State legislature waived sovereign immunity when it passed the NYSHRL and made its provisions applicable to the State. Therefore, the State, its agencies and employees are subject to the NYSHRL for actions that envision direct adherence to a governing rule or standard with a compulsory result.
However, the court notes absolute immunity still exists for public employees "performing discretionary functions, involving the exercise of reasoned judgment which could typically produce different acceptable results even where the State has generally waived its sovereign immunity". ( 2015 WL 5915286, *3.) Additionally, individuals may not be held liable when they are acting within the scope of their duties.
Regarding NYCHRL, New York City lacks the power to waive the State's sovereign immunity. ( 2015 WL 5915286, *3.) Therefore, the State, its agencies and employees engaged in carrying on the State's governmental functions are not subject to the NYCHRL. In Emengo, plaintiff alleged discrimination on the basis of race, national origin and color. ( 2015 WL 5915286, *1 ) The plaintiff sued the State of New York, the State agency he worked for and prior supervisors at the state agency individually and within their capacity as employees of the State. (2015 WL 5915286, *1.) The court determined it had subject matter jurisdiction over plaintiff's NYSHRL claims and plaintiff's NYCHRL claims only to the extent the claims are against "the individual defendants, in their individual capacities, for ministerial acts of discrimination, aiding and abetting discrimination and retaliation against plaintiff."( 2015 WL 5915286, *3.)
Defendant cannot be sued as an individual within its individual capacity therefore, this Court lacks subject matter jurisdiction over Plaintiff's NYCHRL claims as against Defendant.
Public Officer Law § 73Defendant asserts there is no private right of action for Public Officers Law § 73, that legislative intent, legislative history and the statutory scheme put in place to enforce Public Officers Law § 73 indicate the same.
Plaintiff does not attempt to rebut the Defendant's assertion.
Nonetheless this court has determined that Plaintiff's cause of action grounded in Public Officers Law § 73 fails.
The relevant portion of the New York State Public Officers Law § 73 states:
(m) The "relative" of any individual shall mean any person living in the same household as the individual and any person who is a direct descendant of that individual's grandparents or the spouse of such descendant.
Nowhere in Plaintiff's Verified Complaint does she allege that Chalmers lives with the Defendant. Despite, affording the claim a "liberal construction" and affording the Plaintiff the "benefit of every favorable inference" this Court grants Defendants motion to dismiss Plaintiff's claim pursuant New York State Public Officers Law § 73. ( Leon v. Martinez, 84 NY2d 83, 87-88 [1994].)
Intentional Infliction of Emotional Distress
Defendant claims due to the fact that Plaintiff's claims involve money damages the Supreme Court of Queens County is not the proper court. Plaintiff cites Dinerman v. NYS Lottery (58 AD3d 669 [2d Dept 2009] ) which states "[t]he Court of Claims has exclusive jurisdiction over actions for money damages against State agencies, departments, and employees acting in their official capacity in the exercise of governmental functions." In Dinerman , the Supreme Court Kings County dismissed the complaint pursuant to CPLR 3211 (a)(2) for lack of subject matter jurisdiction and the Second Department affirmed (id. ).
This Court has already determined that Plaintiff's Intentional Infliction of Emotional Distress claim fail because they are time barred. "The causes of action sounding in... intentional infliction of emotional distress are governed by a one-year statute of limitation... A cause of action alleging intentional infliction of emotional distress accrues on the date of injury". ( Abdullah Wilson v. Roger Erra, 94 AD.3d 756 [2d Dept 2012] see CPLR 215[3].)
CPLR 3211 (a)(5)CPLR 3211 (a)(5) states as follows:
(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment release, res judicata, statute of limitations, or statute of frauds; or
Continuing Violations Exception
Defendant argues some of Plaintiff's claims pursuant to NYSHRL are time barred, specifically those that occurred prior to December 7, 2015.
In Bermudez v. City of New York, 783 F Supp 2d 560, 572 (SD NY 2011) where plaintiff, an employee of the New York City Police Department, instituted the action sounding in, amongst other claims, violation of New York Administrative Code §§ 8-107 et seq. alleging retaliation and race, gender and religious discrimination. Plaintiff instituted the action on February 16, 2010 ( id. at 574 ). The court instructed that in order for the court to consider claims based upon conduct that occurred prior to February 16, 2007 plaintiff would have to invoke an applicable exception to the three year limitation (id. ). Plaintiff asserted the continuing violations exception was applicable. The continuing violation exception tolls the commencement of the statute of limitations until the completion of the last discriminatory act in furtherance of the policy of discrimination (id. ). "To bring a claim within the continuing violation exception, a plaintiff must at the very least allege that one act of discrimination in furtherance of the ongoing policy occurred within the limitation period" (id. quoting Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir 2004) ] ). "Each discrete discriminatory act starts a new clock for filing charges alleging that act, and even serial violations- a series of discrete but related acts of discrimination- do not warrant application of the continuing violations doctrine." (see Milani v. Intl. Bus. Mach. Corp., Inc., 322 F Supp 2d 434, 452 [SD NY 2004] quoting Nat'l. R.R. Passenger Corp. v. Morgan, 536 US 101, 113-115 [2002].) Plaintiff argued her hostile work environment claim was grounded in a series of continuing violations stemming from 2004 to October 7, 2007. (Bermudez at 582.) Beginning in 2004, plaintiff's supervisor made inappropriate sexual comments, gestures and acts which lasted at least until late 2006. That between 2005 and 2006 plaintiff's supervisor and co-worker made discriminatory comments related to plaintiff's religion. Therefore, plaintiff asserts when taken as a whole, her allegations are sufficient to plead the existence of a hostile work environment. The Court held the claims were timely due to the continuing violation exception (id. ).
NYSHRL Hostile Work Environment Claim
Similar to the plaintiff in Bermudez , Plaintiff has alleged acts when taken as a whole are sufficient to plead the existence of a hostile work environment. Therefore, to the extent that some of the acts alleged fall outside the statute of limitations period they will be considered by this Court pursuant to the continuing violations exception. Defendant's motion to dismiss Plaintiff's NYSHRL hostile work environment claim pursuant to CPLR 3211 (a)(5) is denied.
In Innocenzo Catanzaro v. City of New York ( 2012 WL 1642726 *5 [Sup. Ct. NY County, April 3, 2012, No. 25554/2011] ) where plaintiff instituted the action claiming retaliation under § 75-b of the Civil Service Law. Plaintiff was employed by defendant and beginning in 2006 plaintiff complained that defendant improperly volunteered its staff members to enter the "hot zone" in violation of OSHA requirements. ( 2012 WL 1642726, *2.) Subsequently, plaintiff alleged he experienced a series of retaliatory actions. Defendant moved pursuant to CPLR 3211(a)(5) alleging the statute of limitations period had run. The defendant contended any retaliatory claims that accrued prior to the one year limitations period were time barred ( 2012 WL 1642726 *6.) Plaintiff asserted the continuing violation exception. The court sided with the defendant and stated "The United States Supreme Court contrasted retaliation claims to which the continuing violation doctrine is inapplicable, with hostile work environment claims, to which the continuing violation doctrine may be applicable, reasoning, ‘[h]ostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct’ ". (citation omitted) ( 2012 WL 1642726, *7.)
To the extent that the acts Plaintiff contends amounted to retaliation pursuant to NYCHRL and NYSHRL took place prior to December 7, 2015 they are time barred.
Application of Continuing Violations Exception to 2006 Employment
Defendant alleges that Plaintiff's allegations related to her 2006 Employment are time-barred and not subject to the continuing violations exception because they were interrupted by four years of unemployment, a gap longer than the three year statute of limitations. Defendant points to Green v. Continuum Health Partners, Inc. et al. (88 AD3d 487 [1st Dept 2011] ) where plaintiff alleged the continuing violation exception was applicable to sexual harassment he allegedly experienced in 2005, three years prior to the initiation of the action and sexual harassment alleged to have occurred in 2008 (id. ). The court considered the gap in time coupled with the assertion that the alleged harasser refrained from inappropriate conduct during that gap in time. Ultimately, the court held that the continuing violations exception was inapplicable (id. ).
This Court finds that Plaintiff's allegations grounded solely in conduct that occurred during her 2006 Employment are time-barred. The conduct is too attenuated from that which occurred during her 2010-2016 Employment to be deemed in furtherance of a policy of discrimination (Bermudez at 574), therefore the continuing violations exception is inapplicable.
NYSHRL Discrimination Claims 2010-2016 Employment
This Court finds that Plaintiff's NYSHRL discrimination claims are not time barred because the facts, as they are plead, suggest a policy of discrimination. (Bermudez at 574.) Plaintiff claimed Defendant made offensive gender and race based comments towards her repeatedly throughout the 2010-2016 Employment. Therefore, Defendant's motion to dismiss Plaintiff's NYSHRL discrimination claim pursuant to 3211 (a)(5) as time barred is denied.
CPLR 3211 (a)(7)CPLR 3211 (a)(7) states:
(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
7. the pleading fails to state a cause of action; or
"On a motion to dismiss pursuant to CPLR 3211 (a) (7), the claim must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon at 87-88; see also Sawitsky v. State , 146 AD3d 914 [2d Dept 2017].)
Can Defendant NYS Assembly Be Deemed Cook's Employer for Purposes of This Action?
The Defendant claims the remaining NYSHRL claims must fail as a matter of law because it cannot be considered Cook's "employer" as defined by NYSHRL. Defendant cites Victoria Burhans v. The Assembly of the State of New York (2014 WL 939300 *1 [Sup. Ct. NY County, March 7, 2014, No. 155232/2013) where both plaintiffs alleged that a New York State Assemblymember sexually harassed them. Plaintiffs asserted discrimination against the defendant on the basis of gender by acquiescing in or condoning the Assemblymembers conduct. Defendant moved pursuant to CPLR 3211 (a)(7) stating they do not fall under the definition of an "employer". ( 2014 WL 939300, *3 ) The court determined whether plaintiff could survive the motion to dismiss by applying the facts plead to the economic reality test (see Patfowich v. Chemical Bank, 63 NY2d 541 [1984] ). The economic reality test requires consideration of whether the alleged employer: 1. had the power to hire and fire the employees; 2. supervised and controlled employees work schedules or conditions of employment; 3. determined the rate and method of payment; and 4. maintained employment records. ( 2014 WL 939300, *5 ) The court adopted a broad reading of the test but still found the pleading failed to establish that defendant was an "employer". The court reasoned the defendant does not have an ownership interest in the Assembly because they are all public officers. ( 2014 WL 939300, *8.) Furthermore, plaintiffs did not allege that anyone other than the Assemblymember had the power to hire or fire them. The court held "Unfortunately, the lack of factual support in the amended complaint, and the lack of any testimony in the form of an affidavit in opposition, to support the contention that any of the other 149 Assembly members had the authority to hire or fire plaintiffs; or anyone else hired by the other Assemblymembers. Plaintiffs do not set forth any allegations that any other Assemblymember had the power to make personnel decisions on behalf of Lopez". ( 2014 WL 939300, *9.) Therefore, defendant's motion was granted.
The Burhans holding is specific to its facts in and does not foreclose a finding that the New York State Assembly is an employer.
In support of Plaintiff's contention that Defendant is an employer, Plaintiff points to her dealings with Joyce, who exercised "apparent investigatory and adjudicatory powers," which had the ability to impact the terms and conditions of Plaintiff's employment.
Plaintiff alleges that Defendant may have had power over payment and nonpayment issues and that the Defendant can be assumed to have had some employment records related to the investigations they conduct. However, the same is not contained within the Verified Complaint and cannot be considered on this motion to dismiss.
This court also looks to both the August Letter and September Letter sent by Defendant to Plaintiff. In part, the August Letter stated "[i]n its efforts to create a workplace free from unlawful discrimination and harassment, the Assembly is committed to maintaining the highest standards of ethical conduct from its employees...". The September Letter stated" ... any attempt at retaliation against any party is expressly forbidden by the Assembly's policy, and subject to censure." Arguably, referring to an individual as an "employee" does not make one an employer. However, it holds great weight in an analysis related to whether someone is an employer. Furthermore, language related to "censure" can be indicative of the existence of an employment relationship. According to Plaintiff, Defendant was involved in the determination of when she could return to work after she was placed on administrative lead. These facts suggest supervisory control of Plaintiff and influence over her schedule.
Finally, this Court considers Plaintiff's conversation with Joyce in which she indicated that the power to terminate Plaintiff was solely within the discretion of Cook.
Similar to the court in Burhans, this Court applies a broad reading of the economic reality test. Plaintiff has plead facts that suggest Defendant was in fact Cook's employer and to that extent may be found liable under NYSHRL.
Condonation
In Matter of the State Division of Human Rights v. St. Elizabeth's Hospital (66 NY2d 684, 685 [1985] ) where plaintiff alleged racial discrimination under NYSHRL due to her treatment at defendant's hospital. The court found that the defendant doctor discriminated against the defendant at issue was whether the defendant doctors conduct could be imputed upon the defendant hospital as an employer. Generally, "[a]n ‘employer cannot be held liable for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it" ( id. at 687 quoting Matter of Totem Taxi v. State Human Rights Appeal Bd., 65 NY2d 300, 305 [1985] ). The court found condonation contemplates knowledge, after the fact forgiveness or acceptance of an offense (id. ). "[A]n employer's calculated inaction in response to discriminatory conduct, indicate condonation." (id. ). In Emengo , plaintiff also alleged violation of NYCHRL and NYSHRL on the basis that the state agency defendant aided and abetted in its employee's discriminatory acts ( 2015 WL 5915286, *4 ). The court stated such a claim requires the existence of a discriminatory violation by a primary party, knowledge on the part of the aider and abetter, and substantial assistance by the aider and abetter in the achievement of the primary violation. ( 2015 WL 5915286, *5.) Ultimately, since the court neglected to find discrimination in violation of NYCHRL and NYSHRL the state agency defendant could not be found liable of aiding and abetting. ( 2015 WL 5915286, *5.)
Plaintiff's Claims Against Chalmers
Plaintiff has not alleged facts to suggest that Defendant encouraged, condoned or approved (Totem Taxi at 305) Chalmers' conduct. On the contrary, Plaintiff alleges after her complaint was filed an investigation performed by outside counsel was conducted by the Defendant. That she received two letters from the Defendant one that set forth a plan to prevent retaliatory behavior from the employees in the office and the other, to indicate that while Chalmers did not violate the Defendant's policies a "heated exchange" did occur that was inappropriate for the work place. Defendant also stated, that if Plaintiff experienced any retaliatory behavior she could report it to the Defendant. Nowhere in the Complaint does Plaintiff point to a flaw in the investigation, her dissatisfaction with the findings does not amount to encouragement, condonation or approval on the part of the Defendant.
Discrimination and Hostile Work Environment Claims Against Vivian Cook
Nowhere in Plaintiff's complaint has she suggested facts to suggest Defendants were aware of Plaintiff's discrimination and hostile work environment claims against Cook. Condonation on the part of the employer requires the existence of a discriminatory violation by a primary party, knowledge on the part of the aider and abetter , and substantial assistance by the aider and abetter in the achievement of the primary violation. (66 NY2d at 5.)
Therefore it is,
ORDERED , that Defendant's motion to dismiss Plaintiff's claims pursuant to CPLR 3211(a)(2), (a)(5) and (a)(7) is granted in its entirety to the extent such claims are alleged against Defendant (The New York State Assembly).
The foregoing constitutes the decision and Order of this Court.